05-3716-cv
Piscottano v. Murphy
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 - - - - - -
4 August Term, 2005
5 (Argued: February 14, 2006 Decided: December 21, 2007)
6
7 Docket No. 05-3716-cv
8 _________________________________________________________
9 GARY PISCOTTANO, MARK J. VINCENZO, WALTER C. SCAPPINI
10 II, and JAMES KIGHT,
11 Plaintiffs-Appellants,
12 - v. -
13 BRIAN MURPHY, Deputy Commissioner, Department of
14 Correction, individually, and THERESA C. LANTZ,
15 Commissioner, Department of Correction, individually
16 and in her official capacity,
17 Defendants-Appellees.
18 _________________________________________________________
19 Before: KEARSE and SACK, Circuit Judges, and STANCEU, Judge*.
20 Appeal from a judgment of the United States District Court
21 for the District of Connecticut dismissing complaint alleging that
22 discipline of state correctional officers for association with the
23 Outlaws Motorcycle Club violated their rights under the First and
24 Fourteenth Amendments to the Constitution.
25 Affirmed.
*Honorable Timothy C. Stanceu, of the United States Court of
International Trade, sitting by designation.
1 KATHLEEN ELDERGILL, Manchester, Connecticut
2 (Beck & Eldergill, Manchester, Connecticut, on
3 the brief), for Plaintiffs-Appellants.
4 GREGORY T. D'AURIA, Associate Attorney General,
5 Hartford, Connecticut (Richard Blumenthal,
6 Attorney General of the State of Connecticut,
7 Margaret Q. Chapple, Assistant Attorney
8 General, Hartford, Connecticut, on the brief),
9 for Defendants-Appellees.
10 KEARSE, Circuit Judge:
11 Plaintiffs Gary Piscottano, Mark J. Vincenzo, Walter C.
12 Scappini II, and James Kight, who are current or former employees of
13 the Connecticut Department of Correction ("DOC" or the
14 "Department"), appeal from a judgment of the United States District
15 Court for the District of Connecticut, Mark R. Kravitz, Judge,
16 dismissing their claims that the defendant DOC officials violated,
17 inter alia, their First Amendment and due process rights to freedom
18 of expressive association and freedom of intimate association by
19 disciplining them on account of their membership in, and their
20 association with members of, the Outlaws Motorcycle Club, pursuant
21 to a Department regulation that plaintiffs contend is impermissibly
22 vague. The district court granted summary judgment dismissing those
23 claims on the grounds that plaintiffs' membership in the Outlaws
24 Motorcycle Club did not constitute expressive association on matters
25 of public concern, that membership in that organization is not an
26 intimate relationship that warrants constitutional protection, and
27 that the pertinent regulation is not unconstitutionally vague as
28 applied to plaintiffs. On appeal, plaintiffs contend principally
29 that the district court erred (1) in finding the "public concern"
30 test applicable to their expressive association claims and failing
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1 to find that a balancing of the parties' respective interests
2 favored plaintiffs; (2) in failing to find that defendants' actions
3 burdened plaintiffs' intimate personal relationships; and (3) in
4 failing to find the Department regulation void for vagueness as
5 applied. For the reasons that follow, we reject all of plaintiffs'
6 contentions and affirm the judgment.
7 I. BACKGROUND
8 For purposes of defendants' motion for summary judgment,
9 the following facts, many of which were the subject of testimony at
10 a preliminary injunction hearing, see Piscottano v. Murphy, 317
11 F.Supp.2d 97 (D. Conn. 2004) ("Piscottano I"), were largely
12 undisputed.
13 Prior to April 2004, plaintiffs were employed by DOC as
14 correctional officers in various prisons in the State of Connecticut
15 ("State"). Piscottano had been so employed for approximately 18
16 years, Vincenzo for 18½ years, Scappini for 9 years, and Kight for
17 11½ years. In April 2004, following a hearing for each plaintiff
18 pursuant to Cleveland Board of Education v. Loudermill, 470 U.S.
19 532, 538-41 (1985) ("Loudermill hearing"), DOC terminated the
20 employment of Piscottano and Kight, and ordered counseling for
21 Vincenzo and Scappini, on account of their association with the
22 Outlaws Motorcycle Club (or "OMC," "Outlaws," or "Club"). In
23 November 2004, Vincenzo was discharged after a further Loudermill
24 hearing.
25 Defendant Theresa C. Lantz, with nearly three decades of
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1 experience in prison administration as, inter alia, correctional
2 officer, counselor, training manager, warden, and deputy
3 commissioner, became DOC's Commissioner in March 2003. Defendant
4 Brian Murphy, who had two decades of experience as, inter alia,
5 correctional officer, warden, director of prison security, and
6 expert on gangs, became DOC's Deputy Commissioner for Operations in
7 April 2003. The disciplines imposed on plaintiffs were recommended
8 by Murphy; the final decisions to impose those disciplines were made
9 by Lantz.
10 A. Early Law-Enforcement Information Regarding the Outlaws
11 Although the proceedings leading to the disciplining of
12 plaintiffs had their immediate impetus in an anonymous letter
13 received by DOC in July 2003 (see report of DOC's Security Division
14 dated September 18, 2003 ("DOC 2003 Report" or "DOC Report"),
15 described in Part I.B. below), local and federal law enforcement
16 agencies had been investigating the Outlaws long before the receipt
17 of that letter.
18 1. Information from the Federal Government
19 According to the National Drug Intelligence Center
20 ("NDIC"), which is a unit of the United States Department of
21 Justice, the Outlaws Motorcycle Club has been in existence since
22 1935 and has multiple chapters in the United States, Canada, Europe,
23 and Australia. An October 2002 report of NDIC ("NDIC Report"),
24 received by DOC, contained descriptions of Outlaws activities and
25 the results of investigations by the Bureau of Alcohol, Tobacco, and
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1 Firearms ("BATF") and the Federal Bureau of Investigation ("FBI").
2 According to the NDIC Report, the OMC is involved in the
3 unlawful production and distribution of methamphetamines and in the
4 transportation and distribution of ecstasy, marijuana, and cocaine.
5 Florida chapters obtain kilogram quantities of cocaine directly from
6 Colombian drug trafficking organizations. Other chapters obtain
7 100-pound quantities of marijuana from Mexico. As a result of BATF
8 and FBI investigations, key officers and members of the Outlaws have
9 been prosecuted for and convicted of various crimes; at the time of
10 the NDIC Report, more than 100 Outlaws members were imprisoned in
11 federal facilities. For example, a 1997 RICO prosecution in
12 Wisconsin led to the conviction of 17 Outlaws members on charges
13 involving bombings, robberies, and six murders during a span of five
14 years. A 2001 RICO trial in Florida revealed a decade-long campaign
15 of terror, using murder, bombings, and other forms of intimidation
16 to control the Club's lucrative cocaine trade in Florida; that trial
17 resulted in the conviction of the Outlaws international president,
18 who was sentenced to two consecutive terms of life imprisonment.
19 The NDIC Report stated that Outlaws members also engage in
20 other criminal activities including assault, kidnaping, weapons and
21 explosives violations, arson, theft of motorcycles and motorcycle
22 parts, fraud, money laundering, and extortion. The OMC is involved
23 in the sale of stolen motorcycle parts and in the exploitation of
24 female associates as prostitutes. It launders proceeds of its
25 illegal activities through, inter alia, the sale of Club merchandise
26 at sponsored events.
27 The NDIC Report also stated that the Outlaws has a history
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1 of violent rivalry with the Hells Angels Motorcycle Club ("Hells
2 Angels" or "HAMC"), involving incidents of bombing, arson, and
3 murder. Although the Hells Angels had viewed the northeastern
4 United States as its own territory, the report noted that newly
5 established Outlaws chapters in the United States
6 includ[ed] 8 chapters in the HAMC-controlled states
7 of Connecticut, Massachusetts, New Hampshire and New
8 York. This expansion as well as reports of
9 stockpiling weapons and body armor in preparation
10 for confrontations has heightened tensions between
11 OMC and HAMC.
12 The report noted that 23 heavily armed Outlaws members who were
13 preparing for a fight with the Hells Angels had been arrested in
14 Revere, Massachusetts, on February 23, 2002.
15 2. Information from State and Local Police Forces
16 In 2002, DOC became aware that the Outlaws had opened a
17 chapter in Waterbury, Connecticut. Officers of the Waterbury Police
18 Department and the State Police conducted surveillance of an Outlaws
19 "coming out" party in Waterbury in May 2002. The police
20 investigation included checking the registrations of the motor
21 vehicles parked at the Outlaws compound. Those inquiries revealed
22 that two of the vehicles belonged to Kight and Scappini; the address
23 of their registrations was the Webster Correctional Institution
24 ("Webster CI"), the DOC facility at which Kight and Scappini were
25 correctional officers. The police relayed this information to DOC.
26 Other police surveillances were conducted of Outlaws
27 parties held on various dates in 2003, including May 24, July 17,
28 and September 6. The police sent videotapes and still photographs
29 to DOC's Security Division ("Security Division" or "SD"), showing
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1 Piscottano, Vincenzo, Scappini, and Kight at one or more of those
2 parties. Murphy testified that he first became aware that certain
3 correctional officers might be involved with the Outlaws in May
4 2003, when a reporter for a major Connecticut newspaper made a
5 freedom-of-information inquiry of DOC. (See Preliminary Injunction
6 Hearing Transcript ("Tr.") at 222, 269.) The reporter requested
7 information concerning DOC investigations, including those with
8 respect to Piscottano, Vincenzo, and Kight. (See DOC 2003 Report at
9 2.)
10 DOC received information about the Outlaws and its
11 activities from State Police Trooper Richard Williams, who had long
12 experience in investigating so-called "one-percent" motorcycle
13 gangs--a term derived from an American Motorcycle Association
14 official's remark in the 1950s that 99 percent of all bikers were
15 law-abiding, and thus "only" one percent of the motorcycles on the
16 roads belonged to persons who were trouble-makers. Williams
17 informed DOC that the OMC is a self-proclaimed one-percent gang;
18 that, like other one-percent motorcycle clubs, the Outlaws has
19 distinctive patches that members wear on their clothing, including
20 a "1%" patch; that these patches, known as "colors," signify
21 membership in the Club; that their colors are a source of pride and
22 are not loaned out; that the colors must be returned if the member
23 leaves the Club, unless he has been a member in good standing for
24 more than a few years; that women cannot be members of the Club, but
25 wives and girlfriends are allowed to wear "Property of the Outlaws"
26 colors; and that these colors, too, must be returned if the member
27 leaves the Club, unless he has been a member for a long period.
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1 Williams testified that he had received information from
2 law enforcement agencies around the country about illegal activities
3 of the Outlaws. These included narcotics trafficking, prostitution,
4 rape, and murder.
5 DOC was informed by Williams and the Waterbury police of
6 a drive-by shooting that took place on June 29, 2003. According to
7 Williams, several shots were fired, including two into the door of
8 a social club located in a building that also housed the Outlaws
9 Motorcycle Club. According to the police incident report, a witness
10 stated that the shooter was a white male in his 30s; that after the
11 shots were fired, members of the Outlaws came running out and
12 inquired about the color of the car and the driver; and that when
13 the witness told them the car was dark and the driver was a white
14 male, the Outlaws appeared to know who the shooter had been.
15 B. The July 6, 2003 Anonymous Letter and DOC's Investigation
16 On July 6, 2003, a week after the June 29 drive-by
17 shooting, Lantz received an anonymous letter stating, inter alia,
18 that the Outlaws, described as arch rivals of the Hells Angels, had
19 recently established a chapter in Connecticut, and predicting that
20 there would ensue an "all out gang war in the Waterbury area this
21 summer and innocent people are going to get hurt because of them"
22 (Anonymous Letter). The letter stated that at least five DOC
23 correctional officers were members of the Outlaws, including one
24 named "Gary," whose last name the author did not know, and another,
25 whose name might be "Jim Kite," who had threatened another person
26 with a gun in a road-rage incident. (Id.) The letter referred to
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1 "[t]hese men" as "1% outlaw motorcycle club members" who, while
2 having their salaries and pensions funded by the citizenry, were
3 "terrorizing" "the citizens . . . in Waterbury and elsewhere in Ct."
4 (Id.)
5 A DOC regulation prohibits DOC employees from, inter alia,
6 "[e]ngag[ing] in conduct that constitutes, or gives rise to, the
7 appearance of a conflict of interest," and "[e]ngag[ing] in
8 unprofessional or illegal behavior, both on and off duty, that could
9 in any manner reflect negatively on the Department of Correction."
10 See DOC Administrative Directive 2.17, Employee Conduct ("Directive
11 2.17"). Lantz forwarded the Anonymous Letter to Murphy and to SD,
12 the DOC unit responsible for investigating questions of serious
13 staff misconduct, for further review.
14 On July 12, 2003, SD investigator Luis Irizarry conducted
15 surveillance of a party at the Outlaws Waterbury clubhouse. He
16 observed Piscottano, Vincenzo, and Kight at that event. In August
17 2003, Lantz ordered a formal investigation into the Anonymous
18 Letter's allegations.
19 1. DOC's September 2003 Interviews of Plaintiffs
20 In September 2003, the Security Division conducted
21 interviews of Piscottano, Kight, Vincenzo, and Scappini. Piscottano
22 and Kight stated that they had been members of the Outlaws for a
23 time but had resigned; Vincenzo and Scappini denied ever having been
24 members of the Outlaws. All stated that they had attended Outlaws
25 functions even as non-members. The ensuing DOC report included the
26 following descriptions of the interviews.
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1 Piscottano stated that he had been a member of the
2 Outlaws, initially probationary and then full-fledged, for a total
3 of about a year; he resigned his membership in the Outlaws in the
4 spring of 2003. He stated that he had attended a number of Outlaws
5 functions during the summer of 2003. Piscottano stated that he knew
6 that Randy Sabettini (a correctional officer who was also originally
7 a plaintiff in this action) had at one time been a member of the
8 Outlaws, but did not know of any other correctional officers who
9 were members. Piscottano stated that he "d[id] not know that the
10 Outlaws [we]re involved in any criminal activity," and said, "if
11 they were I wouldn't be there." Further, taken in the light most
12 favorable to Piscottano, the record indicates that he had been
13 informed by Sabettini prior to September 2003 that Sabettini had
14 inquired of, and received assurances from, DOC supervising officials
15 that an officer's association with the Outlaws would not pose a
16 problem so long as the officer himself was not involved in criminal
17 activity.
18 Kight, in his interview, stated that after a six-month
19 probationary period, he had become a full member of the Outlaws in
20 September 2002. He took a leave of absence in June 2003, and he
21 officially resigned in July 2003 and turned in his colors. He
22 stated that he had attended some Outlaws functions after resigning
23 from the Club, most recently in the week before his interview. He
24 knew that Piscottano had been a member of the Outlaws.
25 Kight said he was "not aware of any illegal activity by
26 any of the members of the club . . . . There may be criminal
27 activity in other states but none in Connecticut as far as [he]
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1 kn[e]w." He also stated that he was aware that one Danny Hall, an
2 Outlaws member he had known for 25 years, had been incarcerated on
3 several occasions at the Webster CI where Kight was a correctional
4 officer. Kight said of Hall, "[h]e never asked me to do any favors
5 or anything illegal for him while I performed my job."
6 Vincenzo, who said he had never been a member of the
7 Outlaws, stated that he did associate with some members of the Club
8 and had attended OMC functions in Waterbury and in Brockton,
9 Massachusetts. He had no knowledge of any illegal activity of the
10 Outlaws and did not know any members of the Outlaws who had
11 previously been incarcerated. Vincenzo acknowledged that, in a
12 videotaped surveillance of the Outlaws party in Waterbury on July
13 12, 2003, he was seen wearing an Outlaws Support T-shirt.
14 Vincenzo stated that he had "heard that there might be
15 some type of issue with guys that ride in motorcycle clubs," and he
16 had sought official advice as to whether affiliation with the
17 Outlaws would threaten his employment with DOC. He stated that,
18 while attending a retirement party in the summer of 2003, he had
19 asked a DOC captain to make inquiry of DOC's director of security.
20 Vincenzo said he was told that the director believed there would be
21 no problem if Vincenzo himself was not committing a crime. Vincenzo
22 stated that he received essentially the same advice from a local
23 chief of police.
24 Scappini, who stated that he had never been a member or a
25 prospect of the Outlaws or associated with the Club, stated that he
26 had attended parties and functions with the Outlaws. He had seen
27 Kight, with whom he worked at the Webster CI, at some of the Outlaws
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1 functions. Scappini stated that he was "not aware of" and had not
2 "seen any illegal activity by any member of the Outlaws Motorcycle
3 Club." He said, however, that he had recognized Danny Hall at
4 Outlaws functions and was aware that Hall had been an inmate at the
5 Webster CI. Scappini stated that Hall "never asked me to do
6 anything illegal while he was incarcerated."
7 2. The DOC 2003 Report
8 Following these interviews and the gathering of additional
9 information from federal, State, and local law enforcement agencies,
10 the Security Division sent Lantz the DOC 2003 Report. The report
11 recounted, inter alia, law enforcement experiences with the Outlaws,
12 from both federal and local perspectives, as summarized in Parts
13 I.A.1. and I.A.2. above, including the NDIC Report's description of
14 the Outlaws' drug trafficking, violence, and other criminal
15 activity.
16 The DOC Report also summarized the NDIC Report's
17 description of the Outlaws membership requirements, in part, as
18 follows:
19 Outlaws members must be male, at least 21 years
20 old and own an[] American-made motorcycle with at
21 least a 1,000 cc engine. To be accepted as a
22 member, an individual must begin as an associate or
23 "hangaround" and must perform some service for the
24 chapter. If chapter officers determine that the
25 hangaround has membership potential, he becomes a
26 "prospect", and when he is deemed ready for formal
27 consideration, he become[s] a "probate". For a
28 period of at least 6 months, the probate officially
29 is evaluated for membership and may be asked to
30 perform some illegal activity to prove his loyalty.
31 To obtain full membership the probate must attend
32 one national event and receive the unanimous vote of
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1 the chapter. . . . A member in good standing can
2 leave the club or change chapters at any time after
3 1 year. However, a member must have at least 10
4 years with the club before he is permitted to keep
5 OMC emblems and Patches. . . .
6 Members wear black leather jackets. The club
7 patches, known as colors, are placed on the front
8 and back of the jackets. Outlaws patches are
9 usually black and white lettering. The skull and
10 crossed pistons logo is outline[d] in red and worn
11 on the back of the jacket. OMC members maintain
12 that the skull's glaring red eyes protect the wearer
13 and "watch out for trouble from behind." Above the
14 logo is a top rocker patch with the name Outlaws,
15 below the logo is a bottom rocker that designates
16 the chapter's location. A triangular patch is worn
17 on the left front shoulder with the letters AOA
18 standing for American Outlaws Association
19 surrounding a hand with the middle finger
20 extended. . . . On the other shoulder is worn a
21 triangular 1 % patch. The 1 % refers to a statement
22 made by the former president of the American
23 Motorcycle Association that 99 percent of the
24 motorcycling public are honest, law abiding citizens
25 and that only 1 percent are trouble makers. A patch
26 with the letters GFOD, standing for the Outlaws'
27 motto "God Forgives, Outlaws Don't" also is worn on
28 the front of the jacket.
29 Associates and prospects wear only front
30 patches to identify their status. Probates wear
31 upper Probationary and lower Outlaws rocker patches
32 on their backs. Female associates wear the
33 traditional OMC back patch with "Property of" on the
34 top rocker and the name of the owner on the bottom
35 rocker. . . . Colors are held in the highest
36 esteem. A member who loses his colors is fined $500
37 and demoted to probate status.
38 (DOC 2003 Report at 4 (emphases added).)
39 The DOC 2003 Report summarized SD's September 2003
40 interviews of plaintiffs, see Part I.B.1. above, and stated that
41 there were discrepancies between some of the interview statements
42 and the facts found in DOC's investigation. In particular, the
43 statements by Piscottano and Kight that they had "gotten out [of the
44 Outlaws] early in 2003" were questioned, given that during the
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1 period after they said they had withdrawn, Piscottano and Kight were
2 "positively identified and admitted to being in attendance during
3 one or several of the functions that were sponsored by the Outlaws
4 Motorcycle Club." (DOC 2003 Report at 14.) Kight, during that
5 period, was observed wearing Outlaws colors despite having resigned
6 after being a member for less than a year and despite the Outlaws
7 bylaw forbidding post-resignation retention of colors except by
8 those who have been members for at least 10 years. One such
9 observation was made by Irizarry, who conducted surveillances of the
10 Outlaws and was the author of the DOC 2003 Report:
11 On September 5, 2003 while out with friends at
12 Carmine's Café in Waterbury, Major Irizarry observed
13 several individuals on motorcycles arrive outside of
14 the Café. All of the individuals we[re] wearing
15 leather jackets or vest[s] identifying them with the
16 Outlaws Motorcycle Club. Major Irizarry positively
17 identified Officer James Kight as one of the
18 individuals that was with the group. Officer Kight
19 was observed wearing a leather jacket with the
20 Outlaws rocker on the back.
21 (Id. at 13 (emphasis added); see also id. at 15 ("Kight stated
22 during his interview that he was riding with members of the Outlaws
23 on the evening of September 5, 2003, but was not wearing any colors,
24 since he was no longer a member. But I clearly observed him wearing
25 his colors upon arriving and parking in front of the Café.").)
26 The DOC Report also stated that during one or more of the
27 Outlaws events at which Piscottano, Kight, Vincenzo, and Scappini
28 were seen, several known felons were also observed. (See id. at
29 14.) At a May 2003 Outlaws event, several of the "known felons
30 . . . were wearing full patched Outlaw jackets." (Id. at 12.)
31 Attending a later Outlaws event was a felon who had just been
32 released from prison in July 2003. (See id. at 14; see also id. at
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1 11 (Hall, whom Kight described as having been incarcerated on
2 several occasions at the prison to which Kight was assigned, had
3 been released in July 2003).) The report stated that it was a
4 matter of "clear concern" that
5 correctional staff [are] associating with known
6 felons and other members of this organization. The
7 information in this report identifying the criminal
8 involvement, producing and distributing of
9 methampheta[m]ine and other narcotics indicates that
10 the Outlaws Motorcycle Club are [sic] becoming a
11 great threat to the general public and law
12 enforcement agencies.
13 (Id. at 15.) The report found that by associating with the Outlaws,
14 the correctional officers in question had, inter alia, (1)
15 "jeopardize[d] the security of the unit, health, safety, or welfare
16 of the public, staff or inmates," (2) "[e]ngage[d] in conduct that
17 constitutes, or gives rise to, the appearance of a conflict of
18 interest," and (3) "[e]ngage[d] in unprofessional . . . behavior
19 . . . that could . . . reflect negatively on the Department of
20 Correction." (Id. at 15-18.) The report concluded that the
21 officers were therefore "in clear violation" of Directive 2.17.
22 (Id. at 15.)
23 The DOC 2003 Report also noted that Directive 2.17
24 requires employees to "[c]ooperate fully and truthfully in any
25 inquiry or investigation conducted by the Department of Correction
26 and any other law enforcement or regulatory agency." (Id.) The DOC
27 Report concluded, inter alia, that "[i]t has been determined that
28 . . . Piscottano[] and Kight were not truthful during the
29 investigation, since they . . . claim to have gotten out of the
30 Outlaws early in 2003, but continue to attend functions hosted by
31 the Outlaws." (Id.)
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1 C. The Individual Proceedings and the Imposition of Discipline
2 In late 2003, Lantz ordered that separate proceedings be
3 initiated against Piscottano, Kight, Vincenzo, and Scappini, as well
4 as Sabettini; that each officer be placed on paid administrative
5 leave pending conclusion of his proceeding; and that each be given
6 a copy of the DOC 2003 Report and be afforded an opportunity at a
7 Loudermill hearing to present any mitigating evidence and to dispute
8 the allegations of the DOC Report.
9 Loudermill hearings were conducted and were followed by
10 Security Division investigations into the evidence presented by the
11 officers at those hearings and into each officer's activities with
12 the Outlaws subsequent to his SD interview in September 2003. In
13 February 2004, an individual report ("SD 2004 Report") was prepared
14 with respect to each of the plaintiffs. Each report reiterated the
15 historical perspective of the Outlaws set out in the DOC 2003 Report
16 and noted that
17 [t]hough the OMC has only beg[u]n to become
18 established in New England within the past 5 years,
19 law enforcement sources have stated that there have
20 already been arrests and violent altercations
21 between the OMC and [the Hells Angels]. Though
22 there are several on-going investigations concerning
23 the OMC in New England, law enforcement sources were
24 unable to provide specifics [so] as to not
25 jeopardize the integrity of their cases.
26 (E.g., SD 2004 Report on Piscottano at 3-4.) Each report added the
27 observation that
28 [a]s with other chapters of the OMC, law enforcement
29 sources expect the newly founded New England
30 chapters to follow suit with the criminal activity
31 of older established chapters, which has been made
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1 apparent by information received from current
2 on-going investigations,
3 (e.g., id. at 6), citing as "[a]n example of the criminal
4 progression of the newly formed New England chapters" the February
5 2002 arrests of 23 heavily armed Outlaws members who were preparing
6 for a fight with the Hells Angels in Revere, Massachusetts (e.g.,
7 id.).
8 Each report proceeded to describe the officer's Loudermill
9 hearing statements and the evidence turned up in SD's follow-up
10 investigation. As described below, although the September 2003
11 interviews and the DOC 2003 Report, which had been given to the
12 plaintiffs, had put all of them on notice that the Outlaws was
13 considered by federal, State, and local law enforcement agencies to
14 be engaged in criminal activity, and that DOC was concerned about
15 plaintiffs' association with the Outlaws, the individual reports
16 found that Kight and Piscottano had continued to wear Outlaws colors
17 and to involve themselves in Outlaws-related activities.
18 1. Kight
19 At his Loudermill hearing, Kight took the position, inter
20 alia, that he had not (as described in the DOC 2003 Report at 13)
21 been wearing an Outlaws rocker patch on his jacket at Carmine's Café
22 on September 5, 2003, and he stated that there had been another DOC
23 correctional officer at that café at the time who would so testify.
24 In the Security Division's post-Loudermill-hearing interview, Kight
25 identified his witness as Lawrence Andrews, a correctional officer
26 at the Webster CI where Kight was assigned.
27 SD then interviewed Andrews. Andrews said he had been
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1 present in Carmine's Café on one occasion when Kight and a woman
2 came into the café, and that Kight had not been wearing Outlaws
3 colors. However, Andrews could not remember the date of that
4 occasion and could not say that it was September 5. (See SD 2004
5 Report on Kight at 6.) On the occasion he recalled, Kight and the
6 woman had come in alone (see id.); Kight, however, in his September
7 2003 interview, had stated that he was with members of the Outlaws
8 on the evening of September 5 (see DOC 2003 Report at 15). The 2004
9 report noted that SD investigator Irizarry himself had observed
10 Kight arrive at that café on September 5, with several other
11 individuals wearing Outlaws colors, and had observed Kight wearing
12 a black leather jacket with the Outlaws rocker on the back. (SD
13 2004 Report on Kight at 6-7.)
14 The report also noted that although Kight stated he had
15 resigned from the Outlaws in July,
16 he has admitted wearing colors during an OMC
17 Christmas Party on December 20, 2003. When asked if
18 the colors were his, Officer Kight stated that the
19 colors were brought down for him to wear out of
20 respect by members of the OMC. Officer Kight
21 admitted wearing an OMC insignia belt while at the
22 Christmas Party.
23 (Id. at 7.)
24 The report on Kight also stated that SD had learned that
25 Kight and Piscottano were involved in a physical altercation at
26 Chaser's Café in Bristol, Connecticut, on October 25, 2003. An
27 employee of that café informed investigators that Kight was injured
28 when a member of the Crossroads Motorcycle Club hit Kight in the
29 face with a beer mug, and that gunshots were fired. Kight was
30 dragged out of the café by one of the Outlaws members. The café
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1 employee stated that Kight and Piscottano, as well as certain other
2 full-patch members of the Outlaws whom the employee identified by
3 name, were all wearing Outlaws colors.
4 After the fight, Kight was hospitalized and underwent
5 surgery for the injuries to his face (a broken jaw and a broken
6 nose, according to Kight's testimony at the preliminary injunction
7 hearing). Kight admitted that he had been at Chaser's Café on the
8 night of October 25 and had been knocked unconscious; but he said he
9 had no idea who struck him, and he maintained that his injuries were
10 in fact caused by his slipping and falling in his bathtub while
11 taking a shower. (See SD 2004 Report on Kight at 7-9.) According
12 to the State Police, Kight's "injuries were inconsistent with a fall
13 and were consistent with someone involved in a physical
14 altercation." (Id. at 7.)
15 The SD report found, inter alia, that although Kight
16 contended that he had not engaged in conduct that would be
17 considered a conflict of interest,
18 he continues to associate himself with members of
19 the OMC by attending functions such as the Christmas
20 Party on December 10 [sic], 2003[, e]ven after being
21 placed on Administrative Leave by the DoC for his
22 association with a known criminal entity, which is
23 currently being investigated by State and local law
24 enforcement for criminal/illegal activities.
25 (SD 2004 Report on Kight at 9.) The report concluded that Kight had
26 violated Directive 2.17 by, inter alia, engaging in unprofessional
27 behavior that could reflect negatively on DOC and give rise to the
28 appearance of a conflict of interest, and by failing to cooperate
29 fully and giving false testimony in the DOC investigation. (Id. at
30 10.)
-19-
1 2. Piscottano
2 The Security Division report on Piscottano stated that SD
3 had conducted a post-Loudermill-hearing interview of Piscottano,
4 seeking clarification of his proffered mitigation, but that
5 Piscottano failed to provide detailed information in response to
6 most of SD's questions. He said he had no knowledge about the
7 Outlaws national organization and no recollection of the specific
8 period when he was an Outlaws member or when he attended Outlaws
9 functions. (See SD 2004 Report on Piscottano at 6 ("Piscottano
10 failed to provide this office with specific time frames concerning
11 his membership and/or attendance at OMC functions, stating that he
12 was unsure, couldn't recall or would have to guess.").)
13 The report noted that Piscottano placed his resignation
14 from the Outlaws in the spring of 2003, but that
15 he stated that he still attended OMC functions
16 including parties at the Waterbury OMC clubhouse and
17 Lobsterfest in Brockton, Massachusetts (party
18 sponsored by the Brockton OMC). Officer Piscottano
19 also stated that most recently he attended a
20 Christmas party at the Waterbury OMC clubhouse on
21 December 20, 2003 (the party followed Officer
22 Piscottano's Loudermill and being advised that his
23 involvement with the organization may result in his
24 dismissal from state service).
25 (Id.) SD had learned of Piscottano's presence at the Outlaws
26 Christmas party because he had been seen there by members of the
27 State Police who were serving a search warrant at the Outlaws
28 clubhouse (although they had "extreme difficulty entering the
29 building, as the interior walls of the clubhouse were covered with
30 sheet metal and the door was steel reinforced"), seeking illegal
31 weapons believed to be in the possession of a known Outlaws member
32 who was attending the event. (Id.) In his SD interview, Piscottano
-20-
1 was critical of the police, stating "I couldn't believe they were
2 doing this at a Christmas party." (Transcript of December 22, 2003
3 SD Interview of Piscottano, at 12.)
4 Piscottano was also questioned about the October 25, 2003
5 incident at Chaser's Café at which Kight was injured (see Part
6 I.C.1. above). Piscottano denied being at that café on that date;
7 said he was unsure whether he had ever been there; and said he did
8 not know, offhand, where it was located. The report stated,
9 however, that the café "employee was shown several pictures of OMC
10 members and clearly identified Officer Piscottano and Officer Kight
11 as being involved in the altercation while wearing their OMC
12 colors." (SD 2004 Report on Piscottano at 7.)
13 The report noted that Kight had been admitted to Waterbury
14 Hospital on the night of October 25 with severe facial injuries that
15 required surgery and that Piscottano admitted having visited Kight
16 in the hospital. However, despite that visit, Piscottano stated
17 that he did not know what had precipitated Kight's admittance to the
18 hospital, "nor did he inquire." (Id.)
19 The SD report found that
20 [u]pon review of Officer Piscottano's
21 Loudermill reply and questioning to clarify his
22 alleged mitigation, this office has concluded that
23 Officer Piscottano continues to be actively involved
24 with the Outlaw Motorcycle Club and was less than
25 truthful in regards to his membership. Though
26 Officer Piscottano alleged that he is no longer a
27 member of the OMC, this office has not been
28 presented with any mitigating evidence that would
29 support this claim. . . .
30 This office has also determined that Officer
31 Piscottano was less than truthful in regards to the
32 incident at Chaser's Café on October 25, 2003, where
33 Officer Kight was struck in the face and knocked
34 unconscious by members of the Crossroads Motorcycle
-21-
1 Club and James Gang (motorcycle club). Officer
2 Piscottano was identified (via photograph) by an
3 employee of the café as being present during the
4 melee, though he stated that he was not.
5 (Id. at 7.) The report also found it less than credible that
6 Piscottano would visit Kight in the hospital following the surgery
7 on Kight's nose and jaw, and neither know nor ask what had happened.
8 (See id. at 7-8.)
9 The SD report concluded that although members of the
10 Waterbury chapter of the Outlaws had not been charged with felonious
11 activity, it "is currently under investigation by several Federal,
12 State and local law enforcement entities for just such activity,"
13 and that "[i]t should be noted that Officer Piscottano continues to
14 attend OMC events and socialize with the organization's members,
15 even after being advised that the agency was investigating his
16 involvement with the organization." (SD 2004 Report on Piscottano
17 at 8.) The report concluded that Piscottano had violated Directive
18 2.17 by engaging in unprofessional behavior that could reflect
19 negatively on DOC and give rise to the appearance of a conflict of
20 interest, as well as by failing to cooperate fully in the DOC
21 investigation and giving false testimony. (See id.)
22 3. Vincenzo
23 The post-Loudermill hearing report on Vincenzo described
24 an interview in which Vincenzo reiterated the statements he had made
25 during his September 2003 interview that, inter alia, he had
26 inquired of a DOC captain and, indirectly, the DOC director of
27 security as to the propriety of riding with motorcycle clubs and had
28 been informed that it was not inappropriate so long as he was not
-22-
1 committing any crimes. SD investigators spoke with the DOC captain
2 of whom Vincenzo had inquired and with the security director; both
3 essentially substantiated Vincenzo's account. (SD 2004 Report on
4 Vincenzo at 7-8.)
5 Vincenzo also stated that if any DOC official had informed
6 him that it was inappropriate to ride around with felons and had
7 pointed out individuals who were felons, he "would have been gone."
8 (Id. at 7.) Vincenzo stated that although he had attended Outlaws
9 events in the past, he had not done so since September 2003. The
10 report indicated that SD had received no information indicating
11 Vincenzo's presence at any Outlaws event since that time. (See id.
12 at 8.)
13 The report concluded that Vincenzo's prior association
14 with the Outlaws constituted unprofessional behavior that could
15 reflect negatively on DOC and give rise to the appearance of a
16 conflict of interest. (See id. at 8-9.)
17 4. Scappini
18 In SD's post-Loudermill hearing interview of Scappini,
19 Scappini essentially repeated the statements he had made in his SD
20 interview in September 2003, i.e., that he had never been an
21 associate, prospect, or member of the Outlaws, although he had
22 attended several Outlaws outings in prior years. (SD 2004 Report on
23 Scappini at 7.) The report stated that SD had received no
24 information indicating Scappini's presence at any Outlaws event
25 after May 24, 2003. (See id.)
-23-
1 The report concluded that Scappini's prior association
2 with the Outlaws constituted unprofessional behavior that could
3 reflect negatively on DOC and give rise to the appearance of a
4 conflict of interest. (See id. at 7-8.)
5 5. The April 2004 Dismissals and Counseling Letters
6 Murphy, as deputy commissioner in charge of operations,
7 reviewed the SD reports on the individual officers and gave Lantz
8 his view that it was inadvisable to employ correctional officers who
9 were affiliated with the Outlaws. (See Memorandum from Murphy to
10 Lantz dated March 23, 2004 ("Murphy Mem.").) Murphy testified that
11 after receiving the NDIC Report, he had sought and received
12 corroborating information from the State Police, from law
13 enforcement agencies in Massachusetts and New Hampshire, and from
14 federal agencies including the BATF and the United States Drug
15 Enforcement Administration. (See Tr. 231-32.) And "the more
16 information [he] got, the more [he] became concerned." (Id. at
17 236.)
18 DOC was aware of at least two members of the Outlaws
19 incarcerated in DOC prisons and of members of the Hells Angels and
20 other motorcycle clubs incarcerated at several DOC prisons. Murphy
21 testified that DOC had experienced gang-rivalry incidents of inmate
22 violence in the past between members of gangs other than the Outlaws
23 and the Hells Angels, including one incident in which an inmate was
24 beaten to death with a putter and another in which an inmate was
25 firebombed to death. (See Tr. 235, 258.) Although there had been
26 no incidents in DOC-run prisons involving the Outlaws, and the
-24-
1 Outlaws was not on DOC's own list of organizations that were known
2 to pose security risks (see id. at 259-60, 276-77), DOC had been
3 informed by the Federal Bureau of Prisons that the Outlaws
4 Motorcycle Club is listed as a safety threat group within the
5 federal prison system (see, e.g., id. at 293).
6 In his memorandum to Lantz, Murphy noted that the
7 historical involvement of the OMC "around the country" in "illegal,
8 illicit, violent, and dangerous activities" was "substantiated"
9 (Murphy Mem. at 1), and that law enforcement surveillance of the
10 Connecticut chapter of the Outlaws had made it "clearly evident that
11 the OMC membership involves several convicted felons" (id. at 2).
12 Murphy also noted that "gang affiliation and loyalties to the gang
13 do not cease with incarceration" and that a correctional officer
14 affiliated with the Outlaws, supervising inmates belonging to a
15 different gang, "could be subjected to criticism by inmate rival
16 gang members, alleging inappropriate treatment based on rival status
17 of the gangs." (Id.) Such an officer could also be subjected to
18 "retaliation by inmates." (Id.) For example, a State Police
19 ("CSP") task force member had reported on his recent conversation
20 with a leader of the Hells Angels in which
21 the Hells Angels leader notified the CSP member of
22 "cops" being with the Outlaws; referring to the
23 correctional officers. The Hells Angels leader
24 spoke of the feud with OMC, and warned that the
25 officers were in jeopardy due to their membership
26 with OMC.
27 (Id.)
28 Murphy concluded that the association of DOC correctional
29 officers with the Outlaws "severely jeopardizes the security of the
30 [prison] facilities and protection of the public" and "could also
-25-
1 severely impact the integrity of the agency and its security." (Id.
2 at 2-3.) Murphy concluded that
3 [t]he staff members who do not appear to be members
4 [of the Outlaws] should be warned that continued
5 involvement with this gang may result in termination
6 from state service. Those positively identified as
7 members should be dismissed from state service.
8 (Id. at 3.)
9 Lantz agreed with Murphy's assessments and concerns. (See
10 generally Tr. 326-27.) At the preliminary injunction hearing, she
11 testified that DOC works closely with other law enforcement agencies
12 and has staff members participate in task forces on gang activity.
13 (See id. at 310.) Lantz testified that the concerns for possible
14 conflicts of interest, coupled with the findings that Piscottano and
15 Kight had been untruthful in their interviews with SD investigators,
16 led her to believe that there "was a breach of integrity, certainly
17 unprofessional," that "negatively reflected on the agency." (Id. at
18 327.) Asked to explain why she believed Department operations could
19 be negatively affected by a correctional officer's untruthfulness,
20 Lantz stated,
21 we have a finding of untruthfulness and if no action
22 is taken and they're allowed to go back to work or
23 allowed to carry out their duties, anything else
24 they might do in the performance of their duties
25 could make the agency quite vulnerable by the fact
26 that the agency has already found them untruthful.
27 (Id. at 332 (emphasis added).)
28 Lantz followed Murphy's recommendations. In April 2004,
29 Kight and Piscottano were informed, by the wardens of the prisons to
30 which they were respectively assigned, that they were being
31 dismissed, effective May 6, 2004, for violating Directive 2.17. The
32 letter to Kight stated, in pertinent part, as follows:
-26-
1 This letter serves to inform you that you are
2 being dismissed from State Service for just cause as
3 evidenced by your violation of Administrative
4 Directive 2.17.
5 Specifically, based upon a Security Division
6 investigation into your conduct, it was determined
7 that you were less than truthful when questioned
8 about your association with the Outlaw[s] Motorcycle
9 Club. Your failure to be truthful jeopardizes the
10 safety and security of yourself, your co-workers and
11 the inmates, which cannot be tolerated or condoned.
12 (Letter from Warden James E. Dzurenda to Kight dated April 22,
13 2004.) Piscottano's termination letter was essentially the same.
14 (See Letter from Warden Wayne T. Choinski to Piscottano dated April
15 21, 2004.)
16 Vincenzo and Scappini were not dismissed; they were issued
17 "Formal Counseling" letters for engaging in unprofessional conduct
18 in violation of Directive 2.17. Each letter stated that "a Security
19 Division investigation substantiated that you engaged in activities
20 that negatively reflected on the Department of Correction." (E.g.,
21 Letter from Warden James E. Dzurenda to Scappini dated April 22,
22 2004.) The counseling letters stated that "[t]his type of conduct
23 will not be tolerated," and that "[a]ny recurrence of this behavior
24 will result in more severe disciplinary action being taken against
25 you up to and including dismissal." (E.g., id.)
26 6. The November 2004 Discharge of Vincenzo
27 In July 2004, Lantz received a letter from the president
28 of the prison employees' union asking whether Vincenzo would violate
29 any Department regulation if he attended a fund-raising event to be
30 co-sponsored by the Outlaws at the American Veterans ("AmVets") hall
31 in Enfield, Connecticut, from noon to 6 p.m. on July 11, 2004.
-27-
1 Lantz responded that if Vincenzo attended the event, he would be
2 violating Directive 2.17. Vincenzo received a copy of Lantz's
3 response prior to the July 11 event.
4 Lantz thereafter received information that Vincenzo had
5 proceeded to attend the July 11 Outlaws event; she instructed SD to
6 investigate. SD obtained and reviewed videotapes that had been made
7 during surveillance of the event by the Enfield Police Department.
8 In a memorandum dated August 13, 2004 ("SD August 2004 Report on
9 Vincenzo"), SD reported that on the police surveillance tape
10 covering the segment of the afternoon of July 11 from 1:53 p.m. to
11 4 p.m., Vincenzo was seen arriving at the AmVets hall at
12 approximately 3:43 p.m. (See SD August 2004 Report on Vincenzo at
13 2.) He parked his motorcycle, greeted and hugged members of the
14 Outlaws, and remained in the company of Outlaws members until those
15 attending the party departed at approximately 6:10 p.m. "Vincenzo
16 [wa]s seen riding away with the Outlaws members," and "at th[at]
17 time he [wa]s observed wearing a black short sleeve tee-shirt which
18 appeared to be a 'Support' (Outlaws MC) tee-shirt." (Id.)
19 After reviewing the videotape, SD interviewed Vincenzo.
20 Although Vincenzo maintained that he did not "attend" the event
21 (Transcript of July 26, 2004 SD Interview of Vincenzo, at third
22 unnumbered page), he concededly went to the AmVets hall on July 11,
23 2004, before the 6 p.m. scheduled conclusion of the event (see id.
24 at second unnumbered page ("I don't even know what time I went down
25 there. . . . I think I went down there about five, five thirty
26 somewhere around there.")). Vincenzo acknowledged that upon his
27 arrival he hugged and shook hands with members of the Club, that
-28-
1 while there he consumed a few beers with Outlaws members (see id. at
2 second-third unnumbered pages), and that before he left he donned an
3 Outlaws "support shirt" that had been brought to him (id. at fourth
4 unnumbered page).
5 Lantz ordered that Vincenzo be given a new Loudermill
6 hearing to determine whether his conduct on July 11, 2004, warranted
7 discharge or other discipline. Following the new Loudermill
8 hearing, Lantz determined that Vincenzo should be dismissed for
9 violating Directive 2.17. He was discharged on November 19, 2004.
10 D. The Present Action and the Decision of the District Court
11 Immediately following the April 2004 dismissals of
12 Piscottano and Kight and the counseling letters to Vincenzo and
13 Scappini, those four officers, along with Sabettini who also had
14 been discharged, commenced the present suit under 42 U.S.C. § 1983
15 against Lantz, Murphy, and the wardens who had signed the discharge
16 and counseling letters, asserting claims that those actions
17 violated, inter alia, plaintiffs' First Amendment rights.
18 Plaintiffs moved, unsuccessfully, for a preliminary injunction
19 requiring rescission of the disciplinary actions. See Piscottano I,
20 317 F.Supp.2d at 99-102.
21 Following the denial of the preliminary injunction motion,
22 several amended complaints were filed, which, inter alia, omitted
23 Sabettini as a plaintiff and omitted the wardens as defendants. To
24 the extent pertinent to this appeal, the third (final) amended
25 complaint ("Complaint"), served in November 2004, alleged that
26 Directive 2.17, in "prohibit[ing] . . . [e]ngage[ment] in
-29-
1 unprofessional . . . behavior, both on and off duty, that could in
2 any manner reflect negatively on the Department," is
3 "unconstitutional as applied in this case, in that it violates the
4 First Amendment because it is . . . void for vagueness" (Complaint
5 ¶¶ 26, 27), and that defendants' imposition of discipline on
6 plaintiffs (including the then-recent discharge of Vincenzo for his
7 July 11, 2004 violation of Directive 2.17) violated their rights to
8 freedom of association (see id. ¶¶ 25, 28).
9 Following a period of discovery, both sides moved for
10 summary judgment. Defendants sought summary dismissal of the First
11 Amendment claims, arguing principally (1) that plaintiffs'
12 association with the Outlaws did not constitute speech on a matter
13 of public concern, as required by Connick v. Myers, 461 U.S. 138
14 (1983), and (2) that plaintiffs' interest in associating with the
15 Outlaws is, in any event, outweighed by the State's interest in,
16 inter alia, maintaining safe prison facilities, and hence is not
17 protected by the First Amendment. They argued that Directive 2.17
18 is not unduly vague as applied to plaintiffs' association with the
19 Outlaws.
20 Plaintiffs opposed defendants' motion, arguing principally
21 (a) that the Connick public-concern requirement should not be
22 applied to claims of freedom of association or to an employee's off-
23 duty speech that does not relate to his employment, and (b) that
24 Directive 2.17 is impermissibly vague as applied to plaintiffs
25 because it has no objective content setting forth standards or
26 giving fair notice as to what conduct is proscribed.
27 Plaintiffs also cross-moved for summary judgment in their favor. In
-30-
1 addition to the arguments made in opposition to defendants' motion
2 for summary judgment, plaintiffs argued that they were entitled to
3 judgment on the void-for-vagueness claim because they had no reason
4 to believe that the Connecticut chapter of the Outlaws was involved
5 in any criminal activity and they had been led to believe by their
6 superiors at DOC that so long as plaintiffs themselves were not
7 involved in criminal activity, DOC did not disapprove of their
8 association with the Outlaws.
9 In a Memorandum of Decision dated June 9, 2005, see
10 Piscottano v. Murphy, No. 3:04CV682, 2005 WL 1424394 (D. Conn. June
11 9, 2005) ("Piscottano II"), the district court granted defendants'
12 motion for summary judgment dismissing the Complaint and denied
13 plaintiffs' cross-motion. The court dismissed plaintiffs'
14 expressive association claims on the ground that plaintiffs had not
15 shown that their association with the Outlaws constituted speech on
16 a matter of public concern. See id. at *5-*6. The district court
17 noted that this Court in Cobb v. Pozzi, 363 F.3d 89 (2d Cir. 2004),
18 had stated that "'[w]e . . . join[]'" other circuits and "'hold that
19 a public employee bringing a First Amendment freedom of association
20 claim must persuade a court that the associational conduct at issue
21 touches on a matter of public concern.'" Piscottano II, 2005 WL
22 1424394, at *3 (quoting Cobb, 363 F.3d at 102). Although the Cobb
23 Court had then proceeded to assume, rather than to decide, that the
24 conduct before it in fact touched on a matter of public concern, the
25 district court concluded that the Cobb statement of principle was
26 intended as guidance to the district courts and should be followed,
27 see Piscottano II, 2005 WL 1424394, at *3. The district court
-31-
1 reasoned, alternatively, that because the public-concern test is
2 applicable to speech, which is explicitly protected by the First
3 Amendment, and freedom of association is not mentioned in the
4 Amendment but is derivative of freedom of speech, it would be
5 anomalous to hold that a plaintiff could prevail on a freedom-of-
6 expressive-association claim upon making a lesser showing than that
7 required for proof of a violation of the right to freedom of speech
8 itself. See id. at *4. The court also concluded that plaintiffs
9 were not exempt from the public-concern test for their speech or
10 expressive associations during their off-duty hours. See id. at *6.
11 The court noted that, in response to a question at oral
12 argument, "[p]laintiffs' counsel conceded . . . that if Plaintiffs
13 are required to satisfy the public concern requirement, their First
14 Amendment claim must fail . . . ." Id. at *2. The court
15 accordingly dismissed plaintiffs' expressive association claims.
16 As to plaintiffs' intimate association claims, the
17 district court noted, as set forth more fully in Part III below,
18 that in addition to the undisputed fact that "many of the Outlaws'
19 activities and events--such as motorcycle rides, cookouts and
20 parties--are freely open to non-members," it was "apparent that [the
21 Outlaws] is not a small group" and that it also is not "a
22 particularly selective organization." Id. at *7. The district
23 court thus concluded that association with the Outlaws "falls
24 outside of the range of intimate associations that are protected by
25 the First Amendment." Id. at *8.
26 As to plaintiffs' due process challenge to Directive 2.17,
27 the district court concluded that, even viewing the counseling
-32-
1 letters as discipline and viewing plaintiffs as having been
2 disciplined because of their association with the Outlaws, and not
3 because of any untruthfulness, Directive 2.17 is not
4 unconstitutionally vague as applied to the Plaintiffs because its
5 terms "amply encompass[] the conduct with which Plaintiffs, by their
6 own characterization, were charged--that is, associating with a
7 group that Defendants understood to be 'a criminal enterprise,'" id.
8 at *11 (quoting Plaintiffs' Memorandum of Law in Opposition to
9 Defendants' Motion for Summary Judgment and in Support of
10 Plaintiffs' Cross-Motion for Summary Judgment ("Plaintiffs' Summary
11 Judgment Memorandum") at 48).
12 Addressing plaintiffs' assertion that they did not know
13 the Outlaws was a criminal organization, the district court pointed
14 out that it was an "undisputed fact that in November 2003 each
15 Plaintiff received a copy of the DOC's report outlining numerous
16 instances of criminal conduct by Outlaws members and officials."
17 Id. at *12. The court also noted that Kight and Piscottano had
18 "continued to attend Outlaws events even after being placed on
19 administrative leave pending DOC's full investigation of their
20 association with the Outlaws," id., and that "Vincenzo also
21 continued to attend the Outlaws' activities even after being told
22 expressly that attending Outlaws events would result in
23 termination," id. The district court concluded that
24 [t]here can be no serious dispute that a reasonable
25 corrections officer would recognize that a
26 regulation prohibiting him from "[e]ngaging in
27 unprofessional or illegal behavior--on or off duty--
28 that could negatively reflect on the department"
29 would bar him from associating with a group that has
30 been identified, at least at the national level, as
31 having been involved in criminal and gang-related
-33-
1 activities.
2 Id. (quoting DOC Employee Handbook).
3 Finally, the court rejected the claims of Piscottano and
4 Vincenzo that Directive 2.17 is impermissibly vague because
5 supervisors had misled them to believe that the directive did not
6 prohibit their association with the Outlaws. Id. at *13. Citing
7 Cox v. Louisiana, 379 U.S. 559 (1965), the court stated that
8 allegations of even official misinformation do not "render an
9 otherwise constitutional regulation void for vagueness" where the
10 party's conduct is clearly within the scope of the regulation.
11 Piscottano II, 2005 WL 1424394, at *13. The court noted that
12 Piscottano and Vincenzo had not asserted any claim of estoppel. See
13 id.
14 Judgment was entered dismissing the Complaint in its
15 entirety. On this appeal, plaintiffs pursue their expressive
16 association, intimate association, and void-for-vagueness claims.
17 II. FREEDOM OF EXPRESSIVE ASSOCIATION
18 In challenging the dismissal of their expressive
19 association claims, plaintiffs contend principally that the district
20 court erred (a) in ruling that they were required to show that their
21 expressive conduct was on a matter of public concern, and (b) in
22 failing to rule that their off-duty association with the Outlaws was
23 unrelated to their employment and hence was protected by the First
24 Amendment. For the reasons that follow, we affirm the dismissal of
-34-
1 these claims, although our analysis differs from that of the
2 district court.
3 A. The Applicable Legal Principles
4 The First Amendment provides that "Congress shall make no
5 law respecting an establishment of religion, or prohibiting the free
6 exercise thereof; or abridging the freedom of speech, or of the
7 press; or the right of the people peaceably to assemble, and to
8 petition the Government for a redress of grievances." U.S. Const.
9 amend. I. Although freedom of expressive "association is not
10 explicitly set out in the Amendment, it has long been held to be
11 implicit in the freedoms of speech, assembly, and petition." Healy
12 v. James, 408 U.S. 169, 181 (1972).
13 The First Amendment, applicable to the states through the
14 Due Process Clause of the Fourteenth Amendment, see, e.g., Stromberg
15 v. California, 283 U.S. 359, 368 (1931), thus prohibits a state, as
16 sovereign, from abridging an individual's "'right to associate with
17 others in pursuit of a wide variety of political, social, economic,
18 educational, religious, and cultural ends,'" Boy Scouts of America
19 v. Dale, 530 U.S. 640, 647 (2000) (quoting Roberts v. United States
20 Jaycees, 468 U.S. 609, 622 (1984)), and from denying an individual
21 citizen "rights and privileges solely because of [his] association
22 with an unpopular organization," Healy, 408 U.S. at 186. "[G]uilt
23 by association alone, without [establishing] that an individual's
24 association poses the threat feared by the Government, is an
25 impermissible basis upon which to deny First Amendment rights." Id.
26 (internal quotation marks omitted).
-35-
1 1. The State as Employer, and the Pickering Test
2 When acting as an employer, "the State has interests . . .
3 in regulating the speech of its employees that differ significantly
4 from those it possesses in connection with regulation of the speech
5 of the citizenry in general." Pickering v. Board of Education, 391
6 U.S. 563, 568 (1968). More than "[o]ne hundred years ago, the
7 [Supreme] Court noted the government's legitimate purpose in
8 'promot[ing] efficiency and integrity in the discharge of official
9 duties, and [in] maintain[ing] proper discipline in the public
10 service.'" Connick v. Myers, 461 U.S. 138, 150-51 (1983) (quoting
11 Ex parte Curtis, 106 U.S. 371, 373 (1882)).
12 "To this end, the Government, as an employer, must
13 have wide discretion and control over the management
14 of its personnel and internal affairs. This
15 includes the prerogative to remove employees whose
16 conduct hinders efficient operation and to do so
17 with dispatch. Prolonged retention of a disruptive
18 or otherwise unsatisfactory employee can adversely
19 affect discipline and morale in the work place,
20 foster disharmony, and ultimately impair the
21 efficiency of an office or agency."
22 Connick, 461 U.S. at 151 (quoting Arnett v. Kennedy, 416 U.S. 134,
23 168 (1974) (concurring opinion of Powell, J.)).
24 When someone who is paid a salary so that she will
25 contribute to an agency's effective operation begins
26 to do or say things that detract from the agency's
27 effective operation, the government employer must
28 have some power to restrain her.
29 Waters v. Churchill, 511 U.S. 661, 675 (1994) (plurality opinion).
30 In sum, "the government as employer indeed has far broader
31 powers than does the government as sovereign." Id. at 671.
32 The key to First Amendment analysis of
33 government employment decisions . . . is th[at t]he
34 government's interest in achieving its goals as
35 effectively and efficiently as possible is elevated
36 from a relatively subordinate interest when it acts
-36-
1 as sovereign to a significant one when it acts as
2 employer. The government cannot restrict the speech
3 of the public at large just in the name of
4 efficiency. But where the government is employing
5 someone for the very purpose of effectively
6 achieving its goals, such restrictions may well be
7 appropriate.
8 Id. at 675.
9 This does not mean that public employees, merely by
10 accepting public employment, "relinquish the First Amendment rights
11 they would otherwise enjoy as citizens to comment on matters of
12 public interest in connection with the [government's] operation,"
13 Pickering, 391 U.S. at 568, for "the First Amendment's primary aim
14 is the full protection of speech upon issues of public concern, as
15 well as the practical realities involved in the administration of a
16 government office," Connick, 461 U.S. at 154. Accordingly,
17 [t]he problem in any case is to arrive at a balance
18 between the interests of the [employee], as a
19 citizen, in commenting upon matters of public
20 concern and the interest of the State, as an
21 employer, in promoting the efficiency of the public
22 services it performs through its employees.
23 Pickering, 391 U.S. at 568. See also Garcetti v. Ceballos, 126 S.
24 Ct. 1951 (2006) (statements made by a public employee pursuant to
25 his official duties, rather than as a citizen, are not protected by
26 the First Amendment).
27 The Pickering test thus poses two questions (the first
28 being "implicit in Pickering," City of San Diego v. Roe, 543 U.S.
29 77, 82 (2004) ("Roe")): (1) whether the employee's speech as a
30 citizen was on a matter of public concern, and if so, (2) whether
31 the employer has shown that the employee's interest in expressing
32 himself on that matter is outweighed by injury that the speech could
33 cause to the employer's operations. See, e.g., Garcetti, 126 S. Ct.
-37-
1 at 1958; Waters, 511 U.S. at 668 (plurality opinion); Connick, 461
2 U.S. at 142; Pickering, 391 U.S. at 568.
3 The issue of whether the subject of an employee's speech
4 or expressive conduct is a matter of public concern is a threshold
5 question. See, e.g., Roe, 543 U.S. at 84. If the employee "fails
6 th[is] threshold test[,] Pickering balancing does not come into
7 play." Id.; see, e.g., Connick, 461 U.S. at 146 (if the employee's
8 speech "cannot be fairly characterized as constituting speech on a
9 matter of public concern, it is unnecessary for us to scrutinize the
10 reasons for her discharge"). Thus, we ask first whether the
11 employee's expressive conduct was speech as a citizen on a matter of
12 public concern. "If the answer is yes, then the possibility of a
13 First Amendment claim arises." Garcetti, 126 S. Ct. at 1958. "If
14 the answer is no, the employee has no First Amendment cause of
15 action based on his or her employer's reaction to the speech." Id.
16 2. Public Concern
17 Because the meaning and application of constitutional
18 provisions are issues of law that must be determined by the court,
19 the question of whether an employee's expressive activity is speech
20 on a matter of public concern is an issue of law for the court.
21 See, e.g., Connick, 461 U.S. at 150 n.10. In considering a First
22 Amendment claim of deprivation of the right to free speech, "we are
23 compelled to examine for ourselves the statements in issue and the
24 circumstances under which they [were] made to see whether or not
25 they . . . are of a character which the principles of the First
26 Amendment, as adopted by the Due Process Clause of the Fourteenth
-38-
1 Amendment, protect." Id. (internal quotation marks omitted); see,
2 e.g., id. at 148 n.7 ("The inquiry into the protected status of
3 speech is one of law, not fact."); Waters, 511 U.S. at 668
4 (plurality opinion) ("it is the court's task to apply the Connick
5 test to the facts").
6 The question of what is a matter of public concern is not
7 amenable to a simple, definitive answer. Nonetheless,
8 Connick provides some guidance. It directs courts
9 to examine the "content, form, and context of a
10 given statement, as revealed by the whole record" in
11 assessing whether an employee's speech addresses a
12 matter of public concern. [461 U.S.] at 146-147.
13 In addition, it notes that the standard for
14 determining whether expression is of public concern
15 is the same standard used to determine whether a
16 common-law action for invasion of privacy is
17 present. Id., at 143, n. 5. That standard is
18 established by our decisions in Cox Broadcasting
19 Corp. v. Cohn, 420 U.S. 469 (1975), and Time, Inc.
20 v. Hill, 385 U.S. 374, 387-388 (1967). These cases
21 make clear that public concern is something that is
22 a subject of legitimate news interest; that is, a
23 subject of general interest and of value and concern
24 to the public at the time of publication.
25 Roe, 543 U.S. at 83-84 (emphasis added); see also Connick, 461 U.S.
26 at 146 (speech on a matter of public concern is speech "relating to
27 any matter of political, social, or other concern to the
28 community").
29 3. Employer Justification for Restricting Employee Speech
30 If it is determined that the employee's expressive conduct
31 as a citizen involved a matter of public concern, the government
32 bears the burden of justifying its adverse employment action. See,
33 e.g., United States v. National Treasury Employees Union, 513 U.S.
34 454, 466 (1995) ("NTEU"). Justifications may include such
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1 considerations as maintaining efficiency, discipline, and integrity,
2 preventing disruption of operations, and avoiding having the
3 judgment and professionalism of the agency brought into serious
4 disrepute. See, e.g., Waters, 511 U.S. at 675 (plurality opinion).
5 Evidence that such harms or disruptions have in fact
6 occurred is not necessary. The employer need only make a reasonable
7 determination that the employee's speech creates the potential for
8 such harms. "[W]e do not see the necessity for an employer to allow
9 events to unfold to the extent that the disruption of the office and
10 the destruction of working relationships [are] manifest before
11 taking action." Connick, 461 U.S. at 152.
12 Further, "[w]hen close working relationships are essential
13 to fulfilling public responsibilities, a wide degree of deference to
14 the employer's judgment is appropriate." Id. at 151-52; see, e.g.,
15 Waters, 511 U.S. at 673 (plurality opinion) ("government employers'
16 reasonable predictions of disruption, even when the speech involved
17 is on a matter of public concern" are "given substantial weight");
18 id. ("we have consistently given greater deference to government
19 predictions of harm used to justify restriction of employee speech
20 than to predictions of harm used to justify restrictions [by the
21 government as sovereign] on the speech of the public at large").
22 Such deference to the government's assessment of potential harms to
23 its operations is appropriate when the employer has conducted an
24 objectively reasonable inquiry into the facts--an inquiry that need
25 not be constrained by the rules of evidence, such as the rule
26 against hearsay, applicable in judicial proceedings--and has arrived
27 at a good faith conclusion as to those facts. See id. at 676-77
-40-
1 (plurality opinion). If the employer meets this test, it may, as a
2 matter of law, impose the discipline it deems reasonable, based on
3 the facts it has found, without incurring liability. See, e.g., id.
4 (plurality opinion); see also id. at 685 (concurring opinion of
5 Souter, J.) ("A majority of the Court agrees that employers whose
6 conduct survives the plurality's reasonableness test cannot be held
7 constitutionally liable (assuming the absence of pretext) . . . .").
8 The employer does not meet its burden, however, if there
9 is no demonstrated nexus between the employee's speech and the
10 employer's operations. Where there is no such nexus, the state's
11 interest as an employer is not implicated, and restrictions on the
12 employee's speech will be subjected to the same scrutiny given to
13 restrictions imposed on citizens' speech by the state as sovereign.
14 See, e.g., NTEU, 513 U.S. at 465-66, 467 n.11, 470.
15 In NTEU, the Supreme Court considered a federal statute
16 that prohibited lower-level federal government employees from
17 accepting any compensation for making speeches or writing articles.
18 The plaintiffs were federal employees who, in their off-duty hours,
19 spoke or wrote on topics that usually bore no relationship to their
20 employment. While their speech was evidently on topics of public
21 concern--they were offered compensation by public groups and
22 entities for their talks and writings--the NTEU Court noted that,
23 "[w]ith few exceptions, the content of [plaintiffs'] messages has
24 nothing to do with their jobs and does not even arguably have any
25 adverse impact on the efficiency of the offices in which they work."
26 Id. at 465 (emphasis added); see id. ("Neither the character of the
27 authors, the subject matter of their expression, the effect of the
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1 content of their expression on their official duties, nor the kind
2 of audiences they address has any relevance to their employment."
3 (emphasis added)). Regulations implementing the statute "exclude[d]
4 a wide variety of performances and writings that would normally
5 appear to have no nexus with an employee's job." Id. at 476. With
6 "no nexus to Government employment," the Court stated, "no corrupt
7 bargain or even appearance of impropriety appears likely." Id. at
8 474.
9 The government's only argument in defense of the statute's
10 wholesale ban on the employees' acceptance of honoraria for their
11 off-duty speech was that the outright ban would be easier to
12 administer than a nexus-related prohibition that would require a
13 case-by-case comparison of the speech or article with the employee's
14 job. Although the Court had normally "'given greater deference to
15 government predictions of harm used to justify restriction of
16 employee speech than to predictions of harm used to justify
17 restrictions on the speech of the public at large,'" id. at 475 n.21
18 (quoting Waters, 511 U.S. at 673 (plurality opinion)), the NTEU
19 Court concluded that "[d]eferring to the Government's speculation
20 about the pernicious effects of thousands of articles and speeches
21 yet to be written or delivered would encroach unacceptably on the
22 First Amendment's protections," NTEU, 513 U.S. at 476 n.21.
23 Accordingly, the Court held that the "blanket burden on
24 the speech of nearly 1.7 million federal employees," speaking or
25 writing on their own time on topics unrelated to their employment,
26 "requires a much stronger justification than the Government's
27 dubious claim of administrative convenience." Id. at 474.
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1 The NTEU principle does not immunize an employee's
2 expressive activities--even those that take place during his off-
3 duty hours and outside of the workplace, and that purport to be
4 "about subjects not related to his employment"--when his employer's
5 "legitimate and substantial interests" are "compromised by his
6 speech." Roe, 543 U.S. at 81. The plaintiff in Roe, an officer of
7 the San Diego Police Department ("SDPD"), spent off-duty hours
8 displaying and selling on the internet videos that showed him
9 stripping off what was obviously a police uniform and masturbating.
10 The uniform Roe wore was not the specific uniform worn by San Diego
11 policemen, but he offered official San Diego police uniforms for
12 sale, along with other items such as underwear, police equipment,
13 and custom-made videos. His presentations did not include any
14 commentary on the workings or functioning of the San Diego police
15 department. When the SDPD ordered Roe to cease selling sexually
16 explicit videos or engaging in any similar conduct on the internet,
17 by mail, or through any other means of distribution to the public,
18 Roe only partially complied, continuing to purvey his first two
19 videos and offering to make custom videos. See Roe, 543 U.S. at 78-
20 79. After internal proceedings, Roe was discharged. He sued the
21 city, alleging that the termination violated his First Amendment
22 rights. The district court dismissed his claim on the ground that
23 his expressive conduct was not on a matter of public concern. The
24 court of appeals, citing NTEU, reversed, stating that Roe's conduct
25 was on a matter of public concern, had taken place while he was off
26 duty and away from his employer's premises, and was unrelated to his
27 employment.
-43-
1 The Supreme Court reversed. The Court had "no difficulty
2 in concluding that Roe's expression does not qualify as a matter of
3 public concern under any view of the public concern test." Roe, 543
4 U.S. at 84. It also found NTEU entirely inapplicable because "[i]n
5 NTEU it was established that the speech was unrelated to the
6 employment and had no effect on the mission and purpose of the
7 employer," id. at 80. Roe's conduct, in contrast, brought the
8 police department into serious disrepute:
9 Although Roe's activities took place outside the
10 workplace and purported to be about subjects not
11 related to his employment, the SDPD demonstrated
12 legitimate and substantial interests of its own that
13 were compromised by his speech. Far from confining
14 his activities to speech unrelated to his
15 employment, Roe took deliberate steps to link his
16 videos and other wares to his police work, all in a
17 way injurious to his employer. The use of the
18 uniform, the law enforcement reference in the Web
19 site, the listing of the speaker [in his
20 advertising] as "in the field of law enforcement,"
21 and the debased parody of an officer performing
22 indecent acts while in the course of official duties
23 brought the mission of the employer and the
24 professionalism of its officers into serious
25 disrepute.
26 Id. at 81. Although the court of appeals stated that SDPD had
27 conceded that Roe's activities were "'unrelated'" to his employment,
28 the Supreme Court reasoned that
29 the proper interpretation of the City's statement is
30 simply to underscore the obvious proposition that
31 Roe's speech was not a comment on the workings or
32 functioning of the SDPD. It is quite a different
33 question whether the speech was detrimental to the
34 SDPD. On that score the City's consistent position
35 has been that the speech is contrary to its
36 regulations and harmful to the proper functioning of
37 the police force. The present case falls outside
38 the protection afforded in NTEU.
39 Id. at 81-82; see id. at 84 ("The speech in question was detrimental
40 to the mission and functions of the employer."). In sum, to have a
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1 nexus to his employment, an employee's speech need not comment on
2 the workings or functioning of the employer's operation; it is
3 sufficient that that speech be detrimental to that operation.
4 B. The Record in the Present Case
5 1. Application of the Public Concern Test
6 With these principles in mind, we begin by addressing
7 plaintiffs' contention that Connick's public concern test is
8 inapplicable to claims asserting violation of the right to
9 expressive association and their concession in the district court
10 that their expressive conduct was not on a matter of public concern.
11 We conclude that both their concession--at least so far as
12 Piscottano, Kight, and Vincenzo are concerned--and their contention
13 are erroneous.
14 We note first our agreement with the district court that,
15 in order to prevail on a First Amendment freedom-of-expressive-
16 association claim, a government employee must show, inter alia, that
17 his expressive association involved a matter of public concern--just
18 as would a government employee complaining of a violation of his
19 right to freedom of speech. See, e.g., Cobb v. Pozzi, 363 F.3d 89,
20 102-07 (2d Cir. 2004). Given that freedom of speech is expressly
21 protected by the First Amendment and that freedom of expressive
22 association is not, the latter being deemed protected only as
23 derivative of freedom of speech, we see no logic in plaintiffs'
24 contention that they should be allowed to establish a violation of
25 the derivative right on less proof than is required for
26 establishment of a violation of the expressly protected right from
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1 which it is derived. See, e.g., id. at 105-07.
2 Second, as discussed above, the inquiry into whether the
3 speech at issue is on a matter of public concern is a question of
4 law for the court. Thus, concessions by the parties are not
5 necessarily dispositive, and our review of the record persuades us
6 that the concession by plaintiffs in this case is only partially
7 correct.
8 An individual's association with an organization can be
9 deemed to involve expression on a matter of public concern in either
10 of two ways. First, the organization itself may engage in advocacy
11 on a matter of public concern. If it does, the individual's
12 association with the organization may constitute, at least
13 vicariously, expressive conduct on a matter of public concern. See
14 generally Roberts, 468 U.S. at 622; Melzer v. Board of Education,
15 336 F.3d 185, 195-96 (2d Cir. 2003), cert. denied, 540 U.S. 1183
16 (2004). Second, even where the organization itself does not purport
17 to engage in advocacy on matters of public concern, the individual's
18 association with the organization may--although it does not
19 necessarily--constitute approval or an endorsement of the nature and
20 character of the organization. Such approval or endorsement itself
21 would constitute expressive conduct on a matter of public concern if
22 the nature or character of the organization is a matter of public
23 concern.
24 In the present case, plaintiffs have conceded that the
25 Outlaws is not an organization that speaks out on matters of public
26 concern, and the record as a whole supports that concession. There
27 was no evidence to the contrary; and Kight, for example, testified
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1 that what the Outlaws is "all about" is riding motorcycles, having
2 parties, and "hav[ing] fun." (Tr. 103; see also id. at 137
3 (Scappini: Outlaws functions are "social"); id. at 6 (Piscottano:
4 Outlaws is essentially "a social club").) Thus, we accept
5 plaintiffs' concession to the extent that it meant that they are not
6 engaged in expressive conduct on matters of public concern
7 vicariously by reason of advocacy by the OMC itself.
8 This does not, however, answer the question of whether
9 plaintiffs' own conduct in associating with that chapter constitutes
10 expressive conduct on a matter of public concern, given the history
11 and character of the national organization with which the
12 Connecticut chapter is affiliated and of other Outlaws chapters.
13 The NDIC reports numerous instances in which members of the Outlaws
14 in various parts of the country have engaged in violent criminal
15 activity, including rape, arson, bombings, and murder, and numerous
16 convictions and imprisonments of Outlaws members. (See Part I.A.1.
17 above.) Plainly, the nature of the organization with which the
18 Connecticut chapter is affiliated is a matter of public concern.
19 The conduct of three of these plaintiffs can easily be
20 seen as expressing their view--approval--of the Outlaws local
21 chapter, the national organization with which it is affiliated, and
22 other Outlaws chapters. DOC presented evidence that Piscottano and
23 Kight--even after resigning their membership--not only attended
24 several Outlaws events but also wore Outlaws colors. Vincenzo, even
25 though he has denied ever being a member, has likewise admitted
26 wearing Outlaws apparel. State Police Trooper Williams, an expert
27 in motorcycle gangs, testified that Outlaws colors are a source of
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1 pride (see Tr. 188); and Kight, when asked the significance of
2 wearing Outlaws colors, similarly testified that "[i]t's a proud
3 thing" (id. at 103).
4 Further, the criminal activity in other Outlaws chapters
5 is material here because, while plaintiffs repeatedly emphasize that
6 no member of the Connecticut chapter (qua Outlaw) has thus far been
7 accused or convicted of a crime, the Connecticut chapter's
8 affiliation with the national organization--and the resulting close
9 relationship with other Outlaws chapters--is one of the stated
10 attractions of associating with the Outlaws. Three of the
11 plaintiffs, when asked to describe the reasons for their involvement
12 in the Outlaws, responded, under oath, that one of their reasons was
13 that "as a Club member, I can travel anywhere in the world and be
14 welcomed as a brother." (E.g., Piscottano Answer to DOC
15 Interrogatory No. 8 (emphasis added); Kight Answer to DOC
16 Interrogatory No. 8 (same); Vincenzo Answer to DOC Interrogatory No.
17 8 (same).) (We note that Vincenzo gave this answer despite having
18 denied that he ever was a member of the Outlaws.) Kight, for
19 example, apparently received such a welcome in Florida. When asked
20 about occasions on which, despite his resignation, he was "permitted
21 to wear colors at club functions," he stated:
22 Well, I was just down in Daytona last month or maybe
23 four to six weeks ago, whatever, and I was down
24 there at a party down there and they brought the
25 colors down to me and I wore them while I was down
26 in Daytona.
27 (Tr. 104.) Thus, Piscottano, Kight, and Vincenzo treasure their
28 associations with members of other Outlaws chapters that may well be
29 conducting criminal enterprises. Their wearing of Outlaws colors
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1 and apparel plainly expressed their approval of the Outlaws and its
2 affiliated organizations.
3 The inference that their endorsement extends to other
4 chapters of the Outlaws is supported both by their interrogatory
5 answers described above, embracing association with Outlaws chapters
6 "anywhere in the world," and by their Complaint and in-court
7 testimony. In their Complaint, plaintiffs have taken the position,
8 contrary to the NDIC report, that other chapters have not engaged in
9 criminal activity. They alleged that
10 [t]he DOC Report contains information purportedly
11 gathered from an October 2002 "National Drug
12 Intelligence Center" publication and from an
13 anonymous source which is entirely false and without
14 basis in fact . . . .
15 (Complaint ¶ 18 (emphasis added).) And Piscottano, at the
16 preliminary injunction hearing, testified as follows:
17 Q. Th[e DOC 2003 Report] contains a whole
18 section which has at the beginning, the following
19 information was gathered from The National Drug
20 Intelligence Center publication dated October, 2002.
21 Have you had a chance to review that?
22 A. Yes.
23 Q. Is that information accurate?
24 A. No.
25 (Tr. 14-15 (emphases added).) Thus, in denying that other Outlaws
26 chapters have engaged in criminal activity, plaintiffs have aligned
27 themselves with the Outlaws and against local, State, and national
28 law enforcement agencies. (See also Transcript of December 22, 2003
29 SD Interview of Piscottano, at 12, in which Piscottano expressed
30 outrage that a State Police Homeland Security/SWAT team would serve
31 a search warrant during the Outlaws Christmas party.)
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1 In sum, on this record, we think it plain that Piscottano,
2 Kight, and Vincenzo, by, inter alia, repeatedly consorting with the
3 Outlaws and wearing Outlaws colors and apparel in public--even at
4 such times as they were not members of the Outlaws--engaged in
5 expressive activity approving of the nature of the Connecticut
6 chapter of the Outlaws, of the national Outlaws organization, and of
7 other Outlaws chapters.
8 The fact that law enforcement agencies believe the Outlaws
9 and many of its chapters engage in criminal activity is sufficient
10 in itself to make the nature of those entities a matter of public
11 concern. In addition, in this case we note that public concern was
12 reflected in two other ways. First, the investigation into
13 plaintiffs' activities was sparked by a letter to the Commissioner
14 from a member of the public, expressing apprehension at the prospect
15 of violent encounters between the Outlaws and the Hells Angels,
16 complaining that the motorcycle clubs were terrorizing ordinary
17 citizens, and protesting that patch-wearing members of the Outlaws
18 were State-employed correctional officers. Second, these officers'
19 association with the Outlaws was the subject of a freedom-of-
20 information inquiry from the press. We conclude that the expressive
21 conduct of Piscottano, Kight, and Vincenzo, demonstrating pride in
22 and approval of the organization thus criticized by others,
23 constituted speech by these three plaintiffs on a subject that is a
24 matter of public concern.
25 While we conclude that the nature and character of the
26 Outlaws is a topic of public concern, we have not seen any evidence
27 in the record that Scappini engaged in expressive conduct on that
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1 topic. The record gives no indication that he ever wore Outlaws
2 colors. His response to interrogatories, unlike those of the other
3 three plaintiffs, did not treasure the worldwide welcomes by members
4 of other Outlaws chapters. And SD found no evidence that he
5 attended any Outlaws events after he received the DOC 2003 Report
6 that detailed criminal activity by other Outlaws members around the
7 United States. We conclude that the record does not support an
8 expressive association claim by Scappini because, if he engaged in
9 any expressive conduct, it was not shown to be on a matter of public
10 concern. His expressive association claim was properly dismissed on
11 that basis.
12 With respect to Piscottano, Kight, and Vincenzo, our
13 conclusions (a) that the nature and activities of the Outlaws
14 national organization and its affiliated chapters are a matter of
15 public concern, and (b) that these three plaintiffs engaged in
16 expressive conduct approving of the Outlaws and its chapters, mean
17 that our analysis of their First Amendment claims must proceed to
18 the balancing phase of the Pickering test. That said, we have no
19 difficulty in concluding that the record shows that the balance is
20 in favor of DOC.
21 2. DOC's Evidence as to Likely Disruption of Its Operations
22 Although plaintiffs contend that any balancing favors them
23 because their association with the Outlaws is unrelated to their
24 employment, occurring away from the workplace in their off-duty
25 hours, we reject their contention that there is no nexus between
26 that association and DOC's operations. The evidence sufficiently
-51-
1 shows that DOC conducted reasonable investigations (see Part I.A.,
2 I.B., and I.C. above) and arrived at a good-faith conclusion that
3 having correctional officers who are associated with the Outlaws is
4 detrimental to DOC operations and reflects negatively on DOC.
5 Although DOC presented no evidence that actual disruptions
6 had yet occurred, the record as a whole, including the testimony of
7 its top-ranking officials, who are experts in prison administration
8 and/or the problems of gang violence, amply described threats to
9 safety, potentials for disruption, potential conflicts of interest,
10 and interference with the integrity of DOC's operations.
11 For example, gang fights in which correctional officers
12 are involved--such as the altercation in which, according to the
13 Chaser's Café employee, Piscottano and Kight, wearing Outlaws
14 colors, were involved and Kight was hit in the face by a member of
15 the Crossroads Motorcycle Club--reflect negatively on the
16 Department. Such fights also frequently imperil innocent
17 bystanders. At the Chaser's Café altercation, for example, gunshots
18 were fired.
19 Further, DOC's concerns for the safety of its staff in the
20 prison setting are plainly implicated whenever, for example, there
21 is violent interaction among inmates (see, e.g., Part I.C.5. above,
22 describing DOC's experiences with respect to the gang-related
23 bludgeoning of one inmate and fire-bombing of another), or an inmate
24 attack on a prison guard (see id., describing Hells Angels leader's
25 statement to State Police officer that correctional officers who
26 were associated with the Outlaws were thereby "in jeopardy"). DOC
27 has a legitimate interest in reducing such risks, without having to
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1 wait for emergencies.
2 Plaintiffs' associations with the Outlaws also had the
3 potential to interfere with DOC's collaboration with other law
4 enforcement agencies. For example, Lantz testified that DOC staff
5 members participate in task forces focusing on gang activity. The
6 allegiance of any DOC employees to the Outlaws could jeopardize
7 those working relationships by raising questions as to whether
8 employees of DOC could be relied on to, inter alia, maintain
9 confidentiality as to planned surveillances and executions of search
10 warrants.
11 Moreover, DOC has an interest in avoiding even the
12 appearance that its correctional officers have conflicts of
13 interest. For example, as a general matter, any correctional
14 officer who wished to become a member of the Outlaws would have an
15 incentive to give favorable treatment to an inmate who was already
16 an Outlaws member, for the Outlaws bylaws require that for a chapter
17 to elect a new member, the membership's vote must be unanimous. As
18 for Kight in particular, after he resigned his Outlaws membership,
19 members of the Outlaws repeatedly did him the favor, in disregard of
20 their bylaws, of bringing him Outlaws colors to wear. Kight
21 testified that the Outlaws "allowed me to wear them because they
22 have a lot of respect for me and they know that I still love the
23 club . . . ." (Tr. 103.) Any acceptance of favors raises the
24 prospect that the favors will be returned, creating the appearance
25 of a potential conflict of interest. And Kight's acceptance of
26 these favors out of his "love [for] the club" plainly gave him a
27 potential conflict of interest if there were an inmate who happened
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1 to be a member of the Outlaws.
2 Further, because of rivalry between the Outlaws and the
3 Hells Angels, a correctional officer who is associated with the
4 Outlaws might be tempted to deny fair treatment to an inmate who was
5 a member of the Hells Angels. Even in the absence of such
6 unfairness, the very fact that the officer was associated with the
7 Outlaws could give an inmate who was a member of the Hells Angels
8 (or of any other rival club) a plausible claim that he was denied
9 fair treatment by the officer or, in a disciplinary hearing against
10 the inmate, a basis for challenging the testimony by the Outlaws-
11 associated officer for bias.
12 Nor is the thought that an Outlaws-affiliated correctional
13 officer might mistreat an inmate member of a rival gang at all
14 fanciful. According to Piscottano, the Outlaws itself instructed
15 him not to abuse Outlaws rivals:
16 When I was a member of the Outlaws Motorcycle Club
17 ("Club"), I was expressly instructed that under no
18 circumstances should I take action of any kind, or
19 retaliate in any way, against any member of any
20 other motorcycle club, should I happen to encounter
21 one in the course of my work as a correctional
22 officer. According to the Club, everyone is neutral
23 in the prison setting, everyone gets along and there
24 is no competition or rivalry of any kind.
25 (Affidavit of Gary Piscottano dated February 7, 2005, ¶ 9.) Even
26 leaving aside the contraindicated suggestion that there are no
27 frictions between rival gang members in prison, DOC need not rely on
28 the proposition that its correctional officers will perform their
29 jobs properly because they have been so instructed by the Outlaws.
30 We conclude that DOC established that the conduct of
31 Piscottano, Kight, and Vincenzo, expressing their approval of the
-54-
1 nature and character of the Outlaws, had the potential in several
2 ways to disrupt and reflect negatively on DOC's operations, and that
3 DOC's interest in maintaining the efficiency, security, and
4 integrity of its operations outweighed the associational interests
5 of those plaintiffs. Accordingly, plaintiffs' freedom-of-
6 expressive-association claims were properly dismissed.
7 III. FREEDOM OF INTIMATE ASSOCIATION
8 Plaintiffs contend that the district court erred in
9 dismissing their intimate association claims on the ground that the
10 Outlaws is not a selective organization, and that the court erred in
11 failing to consider that plaintiffs have close personal friendships
12 with Outlaws members. We disagree.
13 Although "[t]he source of the intimate association right
14 has not been authoritatively determined," Adler v. Pataki, 185 F.3d
15 35, 42 (2d Cir. 1999); see id. at 42-44 (discussing cases that frame
16 the right as either an implied First Amendment right or as a
17 fundamental liberty protected by the Due Process Clause of the
18 Fourteenth Amendment), the relationships that have been recognized
19 as entitled to protection under either Amendment are "distinguished
20 by such attributes as relative smallness, a high degree of
21 selectivity in decisions to begin and maintain the affiliation, and
22 seclusion from others in critical aspects of the relationship,"
23 Roberts, 468 U.S. at 620; see also id. (among the factors to be
24 considered are "size, purpose, policies, selectivity, [and]
25 congeniality"). Relationships that "exemplify" constitutionally
-55-
1 protected intimate associations "are those that attend the creation
2 and sustenance of a family," such as "marriage," "childbirth," "the
3 raising and education of children," and "cohabitation with one's
4 relatives." Id. at 619; see, e.g., Pi Lambda Phi Fraternity, Inc.
5 v. University of Pittsburgh, 229 F.3d 435, 438 (3d Cir. 2000)
6 ("intimate association" means "certain close and intimate human
7 relationships like family relationships").
8 Entities such as "large business enterprise[s]," on the
9 other hand, are "remote from the concerns giving rise to this
10 constitutional protection." Roberts, 468 U.S. at 620. When
11 presented with the issue, the Supreme Court has consistently held
12 that large social clubs are not constitutionally protected
13 "intimate" associations. See, e.g., Board of Directors of Rotary
14 International v. Rotary Club of Duarte, 481 U.S. 537, 546 (1987)
15 ("Duarte") (local clubs, ranging in size from fewer than 20 to 900
16 members, did not implicate the right of intimate association);
17 Roberts, 468 U.S. at 621 (same with respect to local clubs having
18 more than 400 members); see also Pi Lambda Phi Fraternity, Inc. v.
19 University of Pittsburgh, 229 F.3d at 438, 442 (same with respect to
20 college fraternity ranging from 22 to 80 members).
21 In the present case, the district court ruled that
22 plaintiffs' affiliation with the Outlaws was not a constitutionally
23 protected intimate association because there was no evidence that
24 the OMC is either a small group or a particularly selective group
25 with respect to its membership or attendance at its functions:
26 Although neither party has specified the
27 precise size of the Outlaws, it is apparent that it
28 is not a small group. . . . The Outlaws is an
29 international organization with chapters in the
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1 United States, Canada, Europe and Australia. . . .
2 Within the United States, there are chapters located
3 in many states, including Wisconsin, Florida,
4 Indiana, North Carolina, Massachusetts, New
5 Hampshire, New York and Connecticut. . . . Indeed,
6 according to Plaintiff Gary Piscottano, "when an
7 [Outlaws] member dies, hundreds of members attend
8 the funeral and offer support and comfort to the
9 family."
10 Piscottano II, 2005 WL 1424394, at *7 (quoting Piscottano Answer to
11 DOC Interrogatory No. 8) (emphasis in Piscottano II). The court
12 continued:
13 Nor is the Outlaws a particularly selective
14 organization. To be sure, membership in the Outlaws
15 is not open to the general public. Membership is
16 extended only by invitation and involves a
17 probationary period. . . . Nevertheless, nothing in
18 the record reveals any onerous requirements for
19 membership. According to Plaintiffs, the group
20 "embraces" those who chose a "non-mainstream, non-
21 traditional, unconventional lifestyle, appearance,
22 ideals and/or job." . . . .
23 It is also undisputed that many of the Outlaws'
24 activities and events--such as motorcycle rides,
25 cookouts and parties--are freely open to non-
26 members. . . . This lack of seclusion from the
27 public also militates against a finding that the
28 Outlaws is the type of intimate association that
29 justifies First Amendment protection. See Roberts,
30 468 U.S. at 621 (finding significant that "numerous
31 non-members . . . regularly participate in a
32 substantial portion" of the Jaycees activities);
33 Duarte, 481 U.S. at [547] (noting that "[m]any of
34 the Rotary Clubs' central activities are carried on
35 in the presence of strangers") . . . .
36 Piscottano II, 2005 WL 1424394, at *7 (quoting Plaintiffs' Rule
37 56(a)(1) Statement, submitted in support of their cross-motion for
38 summary judgment, ¶¶ 32-33).
39 The district court's description was taken from statements
40 of the plaintiffs themselves in their answers to interrogatories, in
41 their responses to defendants' Rule 56(a)(1) Statement of Undisputed
42 Facts, and in plaintiffs' own statement of the facts that plaintiffs
-57-
1 contended were undisputed. We have been pointed to no evidence in
2 the record that shows the existence of any material disputed fact on
3 these issues, and we see no error in the district court's
4 application of the above principles.
5 Nor do we see any error in the court's rejection of
6 plaintiffs' contention that they were disciplined for merely
7 associating with friends who happened to be members of the Outlaws.
8 The notices of termination and counseling bespoke no such rationale;
9 nor did the testimony or documentary evidence. For example, at the
10 preliminary injunction hearing, Murphy was asked whether Vincenzo,
11 who at that time had simply been counseled, would be subject to
12 discipline under Directive 2.17 for riding his motorcycle with,
13 e.g., Piscottano, who frequently consorted with the Outlaws and had
14 been discharged. Murphy distinguished between a correctional
15 officer's mere association with a friend who happened to be
16 affiliated with the Outlaws and an officer's apparent association
17 with the Outlaws organization itself:
18 If they're riding with the Outlaws with all patch
19 members, that may be an issue. If he's friends with
20 Mr. Piscottano in an independent capacity, I can't
21 stop that. But once it crosses the line where it
22 appears to be attached to the Outlaws as an
23 organization, a criminal enterprise, it will
24 probably be looked at.
25 (Tr. 270-71 (emphases added).)
26 In sum, the evidence in the record does not support
27 plaintiffs' contention that DOC imposed discipline on the basis of
28 their close personal friendships. We affirm the dismissal of
29 plaintiffs' intimate association claim substantially for the reasons
30 stated by the district court.
-58-
1 IV. THE VAGUENESS CHALLENGES
2 Finally, plaintiffs contend that the imposition of
3 discipline on them pursuant to Directive 2.17 violated their rights
4 to due process, arguing that that regulation, in prohibiting a
5 correctional officer from engaging in behavior that "could . . .
6 reflect negatively on the Department of Correction," is
7 impermissibly vague. Given that the due process doctrine of
8 vagueness is designed to ensure that, before risking a deprivation
9 of liberty or property, a person have fair notice of the type of
10 conduct that is prohibited, we conclude that plaintiffs' due process
11 claims were properly dismissed.
12 The Due Process Clause of the Fourteenth Amendment
13 provides that "[n]o State shall . . . deprive any person of life,
14 liberty, or property, without due process of law." U.S. Const.
15 amend. XIV, § 1. "It is a basic principle of due process that an
16 enactment is void for vagueness if its prohibitions are not clearly
17 defined." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
18 Thus, a law or regulation whose violation could lead to such a
19 deprivation must be crafted with sufficient clarity to "give the
20 person of ordinary intelligence a reasonable opportunity to know
21 what is prohibited" and to "provide explicit standards for those who
22 apply them." Id.
23 "Condemned to the use of words," however, "we can never
24 expect mathematical certainty from our language." Id. at 110.
25 Thus, a regulation need not achieve "meticulous specificity," which
26 would come at the cost of "flexibility and reasonable breadth," id.
-59-
1 (internal quotation marks omitted); and regulations "are not
2 automatically invalidated as vague simply because difficulty is
3 found in determining whether certain marginal offenses fall within
4 their language," United States v. National Dairy Products Corp., 372
5 U.S. 29, 32 (1963). Rather, the question of whether a statute or
6 regulation is unconstitutionally vague is determined by whether it
7 afforded fair notice to the plaintiff to whom it was applied. "In
8 determining the sufficiency of the notice," a regulation "must of
9 necessity be examined in the light of the conduct with which a
10 defendant is charged." Id. at 33. "A plaintiff who engages in some
11 conduct that is clearly proscribed cannot complain of the vagueness
12 of the law as applied to the conduct of others." Village of Hoffman
13 Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982)
14 ("Hoffman"); see, e.g., Parker v. Levy, 417 U.S. 733, 756 (1974)
15 ("One to whose conduct a statute clearly applies may not
16 successfully challenge it for vagueness.").
17 Further, the Supreme Court has "expressed greater
18 tolerance of enactments with civil rather than criminal penalties
19 because the consequences of imprecision are qualitatively less
20 severe." Hoffman, 455 U.S. at 498-99. And it has indicated that
21 generalized language may appropriately be used to set out standards
22 of conduct for employees. See, e.g., Arnett v. Kennedy, 416 U.S.
23 134, 159 (1974) (plurality opinion). Accordingly, prohibitions
24 phrased in general terms have been upheld when they were plainly
25 applicable to the conduct of the employee plaintiff, despite the
26 existence of questions as to whether they would give fair notice
27 with respect to other, hypothetical, conduct at the periphery. See,
-60-
1 e.g., Janusaitis v. Middlebury Volunteer Fire Department, 607 F.2d
2 17, 27-28 (2d Cir. 1979) (regulation barring "unbecoming conduct
3 detrimental to the welfare or good name of [a Fire] Department" was
4 not impermissibly vague as applied to a fireman who had been warned
5 that if he continued to publish defamatory allegations about the
6 department, he would be fired for violating the regulation); diLeo
7 v. Greenfield, 541 F.2d 949, 953 (2d Cir. 1976) (provision allowing
8 termination of a teacher's employment for "other due and sufficient
9 cause" was not vague as applied to a teacher charged with exhibiting
10 improper conduct toward students); Allen v. City of Greensboro,
11 North Carolina, 452 F.2d 489, 491 (4th Cir. 1971) (regulation
12 barring conduct "unbecoming an officer and a gentleman" was not
13 vague as applied to a policeman accused of making improper advances
14 toward a woman in connection with an official investigation).
15 In Arnett, the Supreme Court considered a vagueness
16 challenge to a provision of the Lloyd-La Follette Act that
17 authorized a federal agency to remove or suspend without pay a
18 nonprobationary federal employee "for such cause as will promote the
19 efficiency of the service," 5 U.S.C. § 7501(a) ("[a]n individual in
20 the competitive service may be removed or suspended without pay only
21 for such cause as will promote the efficiency of the service")
22 (repealed by the Civil Service Reform Act of 1978, Pub. L. No. 95-
23 454, § 204(a), 92 Stat. 1111, 1134). A majority of the Court found
24 the provision not impermissibly vague. See Arnett, 416 U.S. at 158-
25 61 (plurality opinion); id. at 164 (opinion of Powell, J. (agreeing
26 with the reasoning of the plurality opinion on this issue)); id. at
27 177 (opinion of White, J. (same)). The Arnett Court noted:
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1 [T]here are limitations in the English language with
2 respect to being both specific and manageably brief,
3 and it seems to us that although the prohibitions
4 may not satisfy those intent on finding fault at any
5 cost, they are set out in terms that the ordinary
6 person exercising ordinary common sense can
7 sufficiently understand and comply with, without
8 sacrifice to the public interest. [If t]he general
9 class of offense to which . . . [the provisions are]
10 directed is plainly within [their] terms . . . ,
11 [they] will not be struck down as vague, even though
12 marginal cases could be put where doubts might
13 arise.
14 Arnett, 416 U.S. at 159 (plurality opinion) (internal quotation
15 marks omitted).
16 Congress sought to lay down an admittedly general
17 standard, not for the purpose of defining criminal
18 conduct, but in order to give myriad different
19 federal employees performing widely disparate tasks
20 a common standard of job protection. We do not
21 believe that Congress was confined to the choice of
22 enacting a detailed code of employee conduct, or
23 else granting no job protection at all.
24 Id.
25 Although the Arnett Court noted that "[t]he phrase 'such
26 cause as will promote the efficiency of the service' as a standard
27 of employee job protection is without doubt intended to authorize
28 dismissal for speech as well as other conduct," id. at 160
29 (plurality opinion), the Court observed that Pickering makes clear
30 that "'the State has interests as an employer in regulating the
31 speech of its employees that differ significantly from those it
32 possesses in connection with regulation of the speech of the
33 citizenry in general,'" and that those interests may allow "the
34 discharge of [the] employee . . . based on his speech without
35 offending guarantees of the First Amendment." Arnett, 416 U.S. at
36 160-61 (plurality opinion) (quoting Pickering, 391 U.S. at 568).
37 Citing the "essential fairness of this broad and general removal
-62-
1 standard, and the impracticability of greater specificity," the
2 Arnett Court concluded that
3 [b]ecause of the infinite variety of factual
4 situations in which public statements by Government
5 employees might reasonably justify dismissal for
6 "cause," we conclude that the Act describes, as
7 explicitly as is required, the employee conduct
8 which is ground for removal.
9 416 U.S. at 161 (plurality opinion).
10 A. Directive 2.17 and the Notice Given to All Plaintiffs
11 Directive 2.17 sets out Standards of Conduct outlining
12 conduct that is mandatory and conduct that is prohibited. Insofar
13 as plaintiffs challenge it for vagueness, Directive 2.17 provides
14 that employees are prohibited from "[e]ngag[ing] in unprofessional
15 . . . behavior, both on and off duty, that could in any manner
16 reflect negatively on the Department of Correction."
17 In September 2003, all of the plaintiffs were interviewed
18 by SD with respect to their membership, affiliation, or association
19 with the Outlaws. Two of them admitted to having been members in
20 the past; all of them stated that they attended Outlaws events even
21 as nonmembers. All of them were questioned about criminal activity
22 by Outlaws members. They all denied knowledge of any such activity.
23 (See DOC 2003 Report at 7 (Vincenzo: "I have no knowledge of any
24 illegal activity by the Outlaws Motorcycle club."); id. (Piscottano:
25 "I do not know that the Outlaws are involved in any criminal
26 activity, if they were I wouldn't be there."); id. at 10 (Kight: "I
27 am not aware of any illegal activity by any of the members of the
28 club, unless drinking a few beers is considered an illegal activity.
29 There may be criminal activity in other states but none in
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1 Connecticut as far as I know."); id. at 11 (Scappini: "I am not
2 aware of or seen [sic] any illegal activity by any member of the
3 Outlaws Motorcycle Club.").) Plainly, after being questioned by SD
4 about criminal activity by Outlaws members, any reasonable person
5 would be aware that such activity was a matter of concern to DOC.
6 The DOC 2003 Report, described in Part I.B.2. above,
7 prepared after the SD interviews of plaintiffs, began by stating
8 that
9 [o]n August 1, 2003, Commissioner Theresa C. Lantz
10 forwarded a referral to the Director of Security for
11 an official investigation into the allegations that
12 several Correction Officers are members or
13 associates of the Outlaws Motorcycle Club.
14 (DOC 2003 Report at 1.) As described in Parts I.A.1., I.A.2., and
15 I.B.2. above, the DOC 2003 Report proceeded to detail information
16 DOC had received from federal, State, and local law enforcement
17 agencies as to widespread criminal activities by the OMC, which had
18 led to scores of prosecutions and convictions. (See id. at 1-6.)
19 These Outlaws activities included trafficking in ecstasy, marijuana,
20 and cocaine; selling stolen goods; exploiting female associates as
21 prostitutes; and engaging in racketeering through the use of violent
22 crimes such as arson, bombings, and murder.
23 The DOC Report described law enforcement agency
24 surveillances of the Connecticut chapter of the Outlaws during which
25 each of the plaintiffs had been observed attending Outlaws events.
26 (See id. at 2.) It described SD's interviews with each plaintiff on
27 the subject of his involvement with the Outlaws, and recorded the
28 statements of Piscottano and Kight that although they had for a time
29 been members of the Outlaws they had resigned in early or mid-2003.
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1 (See id. at 6, 10.) And it described observations of Kight wearing
2 Outlaws colors subsequent to his resignation. (See id. at 15.)
3 The DOC Report's Summary stated, inter alia, that all of
4 the plaintiffs had "positively been identified as being involved or
5 associating with the Outlaws Motorcycle Club." (Id. at 14.) The
6 DOC Report concluded that each of the plaintiffs had violated
7 various provisions of Directive 2.17, including its prohibition
8 against "[e]ngag[ing] in unprofessional or illegal behavior, both on
9 and off duty, that could in any manner reflect negatively on the
10 Department." (Id. at 16-18.)
11 Each plaintiff was furnished with a copy of the DOC
12 Report. And each was notified that he would be given a Loudermill
13 hearing and an opportunity to, inter alia, dispute the allegations
14 of the DOC Report. (See, e.g., Complaint ¶ 20 ("On or about
15 November 20, 2003 Plaintiffs were provided with a copy of the DOC
16 Report and were ordered to report to DOC for pre-disciplinary
17 hearings. At those hearings, Plaintiffs were warned that as a
18 result of the violations outlined in the DOC Report, they could be
19 subject to discipline, up to and including termination.").)
20 Accordingly, although plaintiffs profess to have had no
21 idea that any Outlaws members in any OMC chapters had engaged in any
22 criminal activity, the record shows beyond cavil that plaintiffs
23 were on notice at least as early as November 20, 2003, (a) that law
24 enforcement agencies had copious information that Outlaws chapters
25 across the nation were engaging in criminal activity, and (b) that
26 DOC considered that the affiliation of its correctional officers
27 with the Outlaws would pose a potential conflict of interest and
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1 reflect negatively on the Department, in violation of Directive
2 2.17. And although plaintiffs contend that the phrase "could in any
3 manner reflect negatively on the Department" did not provide them
4 with reasonable notice that their activities with the Outlaws in
5 their free time were prohibited, that contention defies common
6 sense. That provision of Directive 2.17 expressly refers to
7 activities on or "off duty"; and it is not beyond the intelligence
8 of an ordinary person, much less that of a correctional officer, to
9 recognize that a criminal-justice-system officer's association with
10 an organization whose affiliates engage in criminal activity
11 reflects negatively on the agency that employs him. As the DOC
12 officials stated at the preliminary injunction hearing, it would be
13 difficult to fashion a directive that anticipated the entire range
14 of human behavior and specified every instance of prohibited conduct
15 (see Tr. 276); but surely conduct that could reflect negatively on
16 a criminal justice agency "inherent[ly]" encompasses "association
17 with . . . known criminal enterprises" (Tr. 363).
18 Finally, although plaintiffs argue that they had no
19 personal knowledge of any ongoing criminal activity by members of
20 the Connecticut chapter of the Outlaws or members of other Outlaws
21 chapters, and have taken the position that the NDIC Report of
22 criminal activity on the part of the Outlaws in other parts of the
23 United States is "entirely false and without basis in fact"
24 (Complaint ¶ 18), those arguments provide no support for their claim
25 that Directive 2.17 is impermissibly vague. It is undisputed that
26 DOC had received reports from several law enforcement agencies that
27 the Outlaws national organization and affiliated chapters were
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1 engaged in criminal activity (see, e.g., Plaintiffs' Responding Rule
2 56(a)(2) Statement ¶ 17 (admitting that the NDIC Report (see Part
3 I.A.1. above) "set forth" "allegations" that, inter alia, members of
4 the Outlaws had engaged in and been prosecuted for, convicted of,
5 and imprisoned on account of various crimes including racketeering,
6 robberies, bombings, and murder)). It is indisputable that DOC
7 credited those reports. (See, e.g., Plaintiffs' Summary Judgment
8 Memorandum at 48 ("Defendants' concerns about Club affiliation were
9 based upon their view that the Club was a criminal enterprise.").)
10 And in November 2003 plaintiffs were apprised in writing of those
11 reports and DOC's concern. (See, e.g., Complaint ¶ 20.)
12 In sum, each plaintiff had been questioned in September
13 2003 as to his knowledge of any criminal activity by Outlaws
14 members, questioning that sufficed to alert him that DOC was
15 concerned that there might be such activity and concerned about
16 employing correctional officers who were members or associates of
17 the Outlaws. And each plaintiff had explicit notice at least as
18 early as November 2003 that DOC considered the Connecticut chapter
19 of the Outlaws to be affiliated with an organization that engaged in
20 criminal activity and considered that a correctional officer's
21 affiliation with the Outlaws would reflect negatively on the
22 Department.
23 B. Application of Directive 2.17 to the Individual Plaintiffs
24 Despite the DOC concerns that were imparted to plaintiffs
25 in the fall of 2003, three of the plaintiffs engaged in conduct
26 thereafter that plainly fell within the scope of Directive 2.17's
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1 prohibition against conduct that could reflect negatively on the
2 Department.
3 1. The Continued Conduct of Kight
4 Following his September 2003 interview, Kight continued
5 his public relationship with the Outlaws, wearing Outlaws colors.
6 In October 2003, he was involved in an altercation at Chaser's Café.
7 He was knocked unconscious, and gunshots were fired. An employee at
8 that café identified Kight and several others, all wearing Outlaws
9 colors, and stated that Kight had been struck in the face by a
10 member of a rival gang. Kight was hospitalized with a broken jaw
11 and broken nose. Although he maintained that he had suffered those
12 injuries by falling in his bathtub, the State Police report stated
13 that his injuries were inconsistent with such a fall but consistent
14 with his having been struck in an altercation. The involvement of
15 a DOC correctional officer, wearing Outlaws colors, in a public
16 altercation at which shots were fired surely could reflect
17 negatively on the Department.
18 Kight was repeatedly allowed by the Outlaws to wear
19 Outlaws colors despite having resigned his membership. He explained
20 that Outlaws members brought him the colors out of their "respect"
21 for him and because of their knowledge that he "still love[d] the
22 club." (Tr. 103.) Regardless of whether members of any other
23 Outlaws chapters were involved in criminal activity, the granting of
24 such favors to Kight created the possibility that he might grant
25 favors in return within the prison setting; this plainly exposed DOC
26 to potential criticism. Such favors could take the form not only of
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1 giving preferential treatment to an inmate who was a member of the
2 Outlaws, but also of giving unduly harsh treatment to an inmate who
3 was a member of a rival gang. And if a member of a rival gang
4 accused Kight of abuse, even an unfounded accusation would place DOC
5 in the unfavorable position of having to defend without the ability
6 to deny Kight's conflict of interest. Similarly, if there were a
7 prison disciplinary hearing against such an inmate and Kight were
8 called to testify, his credibility would be subject to attack for
9 his pro-Outlaws bias against the rival gang. Thus, Kight's repeated
10 acceptance of favors from the Outlaws compromised his credibility
11 and potentially threatened the integrity of prison disciplinary
12 proceedings. Plainly such possibilities, especially once DOC had
13 learned of Kight's close association with the Outlaws, would reflect
14 negatively on DOC.
15 In November 2003, Kight was served with the DOC 2003
16 Report that concluded that his continued participation in Outlaws
17 events and wearing of Outlaws colors violated Directive 2.17's
18 prohibition against conduct that could reflect negatively on DOC.
19 Even had Kight not been on notice since September 2003 that DOC
20 viewed such conduct as violating Directive 2.17, the DOC Report
21 indisputably gave him such notice, as well as notice of the various
22 law enforcement agencies' information as to widespread criminal
23 activity on the part of the Outlaws national organization and
24 affiliated chapters.
25 Finally, Kight's Loudermill hearing was held on December
26 4, 2003, and he was "warned" at that hearing "that as a result of
27 the violations outlined in the DOC Report, []he[] could be subject
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1 to discipline, up to and including termination" (Complaint ¶ 20).
2 Nonetheless, Kight proceeded to attend the Outlaws Christmas party
3 on December 20, 2003, wearing Outlaws colors. His wearing of
4 Outlaws colors showed that he was "proud" of the organization. (Tr.
5 103.) It surely requires no special intelligence to realize that
6 Kight's repeated displays of his pride in being associated with a
7 group believed by every level of law enforcement to be affiliated
8 with an organization engaged in widespread criminal activity could
9 reflect negatively on the Department.
10 In sum, the undisputed facts of record make it clear that
11 Kight received fair notice that the Outlaws-related activities in
12 which he engaged after September 2003 would violate Directive 2.17's
13 prohibition against conduct that could reflect negatively on DOC.
14 Kight's vagueness claim was properly dismissed.
15 2. The Continued Conduct of Piscottano
16 Piscottano too continued his open association with the
17 Outlaws in the fall and winter of 2003. He sought, however, to
18 overturn his discharge in part by asserting that he knew of no
19 criminal activity on the part of the Outlaws and claiming that in
20 fact the NDIC report of such criminal activities was not accurate
21 (see Tr. 14-15), and in part by stating that he had received advice
22 indirectly from a DOC warden, Larry Myers, and a supervisor, Michael
23 Lajoie, that a correctional officer's association with the Outlaws
24 would not violate DOC policies so long as the officer himself was
25 not involved in criminal activity. Piscottano's contentions provide
26 no basis for reversal, given the concerns communicated to him by DOC
-70-
1 during and after his September 2003 interview.
2 In some circumstances, advice from officials as to the
3 propriety of proposed conduct may indeed justify an individual in
4 believing that his planned conduct is not prohibited. In Cox v.
5 Louisiana, 379 U.S. 559 (1965), for example, the Supreme Court
6 overturned a conviction for violation of a statute that prohibited
7 protests "near" a courthouse, because police officers had advised
8 the appellant that his planned demonstration across the street from
9 the courthouse would not violate that prohibition, and the
10 protestors proceeded to hold their demonstration at the expressly
11 approved location. See id. at 571 ("after the public officials
12 acted as they did, to sustain appellant's later conviction for
13 demonstrating where they told him he could" would be inconsistent
14 with due process). As discussed below, the advice received by
15 Piscottano, in contrast to that received by the appellant in Cox,
16 was not received directly from officials, was not contemporaneous
17 with the conduct that led to his dismissal, and had become clearly
18 obsolete--at best--as a result of DOC's direct dealings with
19 Piscottano prior to the conduct that led to his dismissal.
20 Piscottano's evidence that he had received advice that his
21 association with the Outlaws would not violate DOC regulations, so
22 long as he himself did not engage in criminal activity, consisted
23 principally of the affidavit of Sabettini, which stated, in relevant
24 part, as follows:
25 Some time in 2001, I spoke to Warden Meyers [sic],
26 then Warden of NCI [the correctional institution to
27 which Sabettini was assigned], concerning my
28 association with the Club. Later in the year I
29 spoke to Major Lajoie about my association with the
30 Club. Both Meyers [sic] and Lajoie informed me that
-71-
1 this association would not pose a problem, as long
2 as I was not involved in any criminal activities. I
3 relayed this information to Gary Piscottano.
4 (Affidavit of Randy Sabettini dated April 23, 2004, ¶ 6.) The
5 statement by Sabettini that he had inquired of his supervisors
6 "concerning [his] association with the Club" is silent as to
7 precisely what information he conveyed to them in seeking their
8 advice. Nor does Sabettini in his affidavit identify the time
9 period when he relayed information to Piscottano. (Piscottano
10 himself could only say that he had received the information from
11 Sabettini prior to September 2003.) However, any information
12 relayed from the "2001" conversations to which Sabettini referred
13 must have concerned his association with an Outlaws chapter other
14 than the Connecticut chapter, for the Connecticut chapter of the
15 Outlaws was not founded until 2002.
16 SD, having been informed early in its investigations that
17 Sabettini had at some point made some inquiry of his supervisors
18 with respect to his association with the Outlaws, interviewed Myers
19 and Lajoie. Neither Myers nor Lajoie provided any information with
20 respect to any conversation with Sabettini in 2001; but both
21 indicated that they had had conversations with him in mid- or late
22 2002. Myers stated:
23 I can't recall if [Sabettini] specifically mentioned
24 the Outlaws, but I recall telling him that if [he]
25 was not involved in any criminal activities I didn't
26 see an issue with him riding motorcycles with club
27 members. I can't recall Officer Sabettini
28 specifically saying that he was a member of any
29 motorcycle club.
30 (Interview Statement of retired Warden Larry Myers dated January 8,
31 2004.) Lajoie described a conversation in which Sabettini
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1 asked whether or not it was an issue if he was a
2 member of the Outlaws. I told him that I didn't
3 know of any directives that specifically addressed
4 being involved with a club of that nature and as
5 long as he was not committing any crimes or doing
6 anything wrong, I didn't believe it violated any
7 departmental policies. I told him that it didn't
8 look very good in the eyes of perception when an
9 officer was believed to be a member of any
10 motorcycle group of this nature. At some point he
11 stated that he was no longer a member and I told him
12 that he was better off not associating with anyone
13 from that organization. I would occasionally have
14 conversations with Officer Sabettini in passing
15 where he would state that he was still out of the
16 organization. Officer Sabettini never informed me
17 of how long he was in the organization or if he held
18 any position within the club. Officer Sabettini
19 never spoke of specifics concerning the club with
20 me.
21 (Interview Statement of Major Michael Lajoie dated December 17,
22 2003.)
23 Piscottano's reliance on the Sabettini affidavit thus
24 leaves a number of questions unanswered. It is not clear, for
25 example, whether the information Sabettini "relayed" to Piscottano
26 was simply that membership in the Outlaws posed no problem--
27 information that may have been either premature (if relayed in 2001)
28 or outdated (if relayed after the warnings given by Lajoie in 2002)-
29 -or whether the relayed information instead included Lajoie's
30 response that "it didn't look very good in the eyes of perception
31 when an officer was believed to be a member of any motorcycle group"
32 such as the Outlaws, advice that could not reasonably be viewed as
33 countenancing such activities.
34 What is clear is that Piscottano stated he received the
35 Sabettini-relayed advice prior to September 2003, and that that
36 advice could not reasonably be viewed as providing Piscottano any
37 solace thereafter. In September 2003, DOC's interview of Piscottano
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1 with respect to his Outlaws-related activities was plainly
2 sufficient to alert him that DOC had a negative view of correctional
3 officers' engaging in such activities. In November 2003, Piscottano
4 received the DOC 2003 Report, which detailed law enforcement
5 agencies' information as to widespread criminal activity on the part
6 of the Outlaws national organization and affiliated chapters. That
7 Report also expressly concluded that Piscottano's continued
8 participation in Outlaws events and wearing of Outlaws colors
9 violated Directive 2.17's prohibition against conduct that could
10 reflect negatively on DOC. Finally, at his Loudermill hearing,
11 which was held on November 21, 2003, Piscottano was "warned that as
12 a result of the violations outlined in the DOC Report, []he[] could
13 be subject to discipline, up to and including termination"
14 (Complaint ¶ 20). Given these DOC proceedings beginning in
15 September 2003, no prudent correctional officer could reasonably
16 rely on the information received in 2001 or 2002 to support a belief
17 that Directive 2.17 would not be violated by his continued close
18 association with the Outlaws.
19 Yet, after his DOC interview in September 2003, Piscottano
20 was identified as one of those who, wearing Outlaws colors, was
21 involved in the October 2003 public altercation with members of
22 another motorcycle club at Chaser's Café, during which Kight was
23 injured and gunshots were fired (see Parts I.C.1. and I.C.2. above).
24 And after receiving the DOC 2003 Report and being warned at his
25 Loudermill hearing in November 2003 that his continued association
26 with the Outlaws could result in his dismissal, Piscottano proceeded
27 to attend the Outlaws Christmas party, wearing Outlaws colors, in
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1 December 2003. No rational factfinder could find that Piscottano
2 lacked notice after September 2003 that such conduct could reflect
3 negatively on DOC, in violation of Directive 2.17. The summary
4 dismissal of his vagueness claim was appropriate.
5 3. The July 2004 Conduct of Vincenzo
6 Unlike Kight and Piscottano, who were dismissed in April
7 2004 because of their conduct in the fall and winter of 2003,
8 Vincenzo was not dismissed until late 2004. In connection with his
9 first Loudermill hearing in late 2003, Vincenzo stated that he had
10 not attended any Outlaws event since September 2003, and SD saw no
11 evidence to contradict that representation. Hence, in April 2004,
12 DOC merely ordered that he receive counseling.
13 Vincenzo was dismissed in November 2004, however,
14 following a further Loudermill hearing. The basis for his dismissal
15 was that, after an inquiry to Lantz as to whether Vincenzo's
16 attendance at the July 11, 2004 Outlaws event at the AmVets hall
17 would violate any DOC regulation, and after Vincenzo received a
18 response from Lantz that his attendance at that event would violate
19 Directive 2.17, Vincenzo concededly went to the AmVets hall prior to
20 the scheduled conclusion of the event. He remained there and drank
21 with members of the Outlaws until the end of the event. He departed
22 with members of the Outlaws after the event ended, having donned an
23 Outlaws Support shirt. (See Part I.C.6. above.)
24 Vincenzo's contention that his conduct did not constitute
25 "attend[ance]" at the July 11 event is frivolous, and it is
26 incontrovertible that he received fair notice that his conduct would
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1 violate Directive 2.17. His vagueness claim was properly dismissed.
2 4. The Vagueness Claim of Scappini
3 Finally, we find no error in the dismissal of the
4 vagueness challenge by Scappini, but for a different reason.
5 Scappini, unlike the other plaintiffs, apparently did not
6 participate in any Outlaws-related activities after being
7 interviewed by SD in September 2003 or after receiving the DOC
8 Report describing the criminal activities of the OMC. Indeed, the
9 SD 2004 Report on Scappini stated that SD had no information that
10 Scappini had attended any Outlaws event after May 24, 2003.
11 Accordingly, the record does not reveal any Outlaws-related conduct
12 by Scappini after he learned of DOC's concern that such activities
13 would violate Directive 2.17's prohibition against conduct that
14 could reflect negatively on DOC.
15 However, unlike the other plaintiffs, Scappini was not
16 dismissed. He was placed on administrative leave during the
17 pendency of his Loudermill hearing; but that was a fully-paid leave.
18 He was issued a formal counseling letter; but that letter merely
19 advised him that he would be disciplined if he again engaged in the
20 conduct for which he was criticized in the DOC 2003 Report.
21 Scappini suffered no loss of employment, no demotion, no loss of
22 salary, no loss of benefits. In short, Scappini adduced no evidence
23 that the application of Directive 2.17 to him deprived him of any
24 property. His due process challenge to Directive 2.17 was properly
25 dismissed.
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1 CONCLUSION
2 We have considered all of plaintiffs' arguments on this
3 appeal and have found them to be without merit. The judgment
4 dismissing the Complaint is affirmed.
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Piscottano v. Murphy
Court: Court of Appeals for the Second Circuit
Date filed: 2007-12-21
Citations: 511 F.3d 247
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