Weaver v. Henderson

• Court: Court of Appeals for the First Circuit
• Decided: January 21, 1993
• Docket: 92-1821
• Status: Published

Opinion

USCA1 Opinion

January 21, 1993

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                              _________________________

          No. 92-1821

                            RALPH S. WEAVER, ETC., ET AL.,
                               Plaintiffs, Appellants,

                                          v.

                           CHARLES HENDERSON, ETC., ET AL.,
                                Defendants, Appellees.

                              _________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Rya W. Zobel, U.S. District Judge]
                                           ___________________

                              _________________________

                                        Before

                                Selya, Circuit Judge,
                                       _____________

                            Coffin, Senior Circuit Judge,
                                    ____________________

                              and Stahl, Circuit Judge.
                                         _____________

                              _________________________

               Kathleen M. McCarthy for appellants.
               ____________________
               James T. Masteralexis on brief for International Brotherhood
               _____________________
          of Police Officers, amicus curiae.
               Rosemary  S.  Gale, Assistant  Attorney  General,  with whom
               __________________
          Scott Harshbarger, Attorney General, was on brief, for appellees.
          _________________

                              _________________________

_________________________

SELYA, Circuit Judge.  In this case, the district court
                    SELYA, Circuit Judge.
                           _____________

          refused  to   issue  a  preliminary  injunction   suspending  the

          Massachusetts  State Police  Department's  "no mustache"  policy.

          The plaintiffs, veteran police officers partial to their existing

          mustaches, prosecute  this  appeal.   Finding no  legal error  or

          abuse of discretion, we affirm the denial of interim relief.

          I.  BACKGROUND
          I.  BACKGROUND

                    In  1991, Massachusetts  decided  to  merge four  state

          police  forces (the  Division of  State Police,  the Metropolitan

          District Commission Police, the  Capitol Police, and the Division

          of  Law Enforcement  of the  Registry of  Motor Vehicles)  into a

          single entity (the Department  of State Police).   See An Act  to
                                                             ___

          Consolidate Certain Police Forces in the Commonwealth, 1991 Mass.

          Acts c. 412,  at 985.  When the enabling  legislation was  signed

          into law,  defendant-appellee Charles  Henderson was  the ranking

          officer of the Division  of State Police.  Since  the legislation

          stipulated that Colonel  Henderson, by virtue of his  rank, would

          serve as the "executive and administrative head" of the composite

          force,  id. at  990, he  possessed power  to "make  all necessary
                  ___

          rules and regulations" for  governance of, and discipline within,

          the new department.   Id. at 991.  In  addition, the law directed
                                ___

          him to establish  a transition program to familiarize officers of

          the component units with the new department's rules and practices

          and to inculcate a unified mission.  See id. at 1032.
                                               ___ ___

                      Pursuant  to his newly conferred statutory authority,

2

Colonel  Henderson promulgated  General  Order  01 (the  Order).1

          The  Order barred officers of the Department of State Police from

          wearing  mustaches  on  and  after  July  1,  1992,   except  for

          undercover assignments or  health reasons.2  In this respect, the

          Order  is  substantially  identical  to  a  regulation  that  for

          seventy-one  years  dictated the  appearance  of  members of  the

          former Division of  State Police,  1,213 strong as  of 1991,  who

____________________

               1General Order 01 provides in pertinent part:

                    4.5.5     Hair may be  tapered or blocked  at
                    the sides but will not touch the ears.

                    4.5.6     Wigs or hairpieces  may be worn  if
                    they conform to standards for natural hair.

                    4.5.7     Faces  will  be clean  shaven.   NO
                    mustaches, beards or goatees except:

                    o         Undercover  officers  with approval
                    of        the Bureau Commander;

                    o         Medical  problems   verified  by  a
                              medical      practitioner      with
                              documentation   forwarded,  through
                              channels, to the State  Surgeon for
                              review  and recommendations  to the
                              Office   of    the   Colonel/Super-
                              intendent.

                    4.5.8     Sideburns  will  be neatly  trimmed
                    and rectangular  in shape.  They  will not be
                    longer than the midpoint of the tragus of the
                    ear and will be:

                    o         Trimmed horizontally, at a right angle;

                    o         Of even width.

               2Notwithstanding   the   Order's  effective   date,  Colonel
          Henderson provided that those who refused to put blade to face by
          July 1 would  be sworn into  the new department as  special state
          police  officers, enjoying  "full  police powers"  until July  1,
          1993.

                                          3

comprise more than half the total membership of the 2,093-officer

          consolidated force created  by the 1991 legislation.

                    On May  21, 1992, six  veteran officers  of the  former

          Metropolitan   and  Registry  police   who  had   worn  mustaches

          throughout their law enforcement careers sued for declaratory and

          injunctive  relief, naming Colonel Henderson, the Commonwealth of

          Massachusetts Department  of Public Safety, and the Massachusetts

          State  Police  as  respondents.   The  plaintiffs  simultaneously

          sought a preliminary injunction to prevent the "no mustache" rule

          from taking effect as scheduled.  They claimed, inter alia,  that
                                                          _____ ____

          the  Order,  if  implemented,   would  abridge  their  First  and

          Fourteenth  Amendment  rights by  forcing  them  to sacrifice  an

          integral aspect of their personal identities.

                    Following  the submission  of affidavits,  the district

          court held a hearing on the prayer for interim injunctive relief.

          At the conclusion of  the hearing, the court allowed  the parties

          to  file  supplemental   affidavits.     After  considering   the

          cumulative   record,   the   court   refused   to   meddle   with

          implementation  of the  Order, finding  that the  plaintiffs were

          unlikely  to  succeed  on  the  merits  of  their  constitutional

          challenge.  This appeal ensued.

          II.  ANALYSIS
          II.  ANALYSIS

                    We   rehearse  the   criteria  applicable   to  interim

          injunctive  relief  and then  assess  the  supportability of  the

          ruling below.

                                 A.  Legal Standards.
                                 A.  Legal Standards.
                                     _______________

4

Over time,  we have developed a  quadripartite test for

          determining   whether  litigants  are   entitled  to  preliminary

          injunctive redress.   See Narragansett Indian  Tribe v. Guilbert,
                                ___ __________________________    ________

          934  F.2d  4, 5  (1st  Cir. 1991).    The  sine qua  non  of that
                                                     ____ ___  ___

          formulation  is whether the  plaintiffs are likely  to succeed on

          the merits.3   See id.  at 6 (labeling  this factor  "critical");
                         ___ ___

          Auburn News Co. v. Providence Journal Co., 659 F.2d 273, 277 (1st
          _______________    ______________________

          Cir.  1981) (stating  that "the  probability-of-success component

          has  loomed large"  in most  cases), cert.  denied, 455  U.S. 921
                                               _____  ______

          (1982).  In  the ordinary  course, plaintiffs who  are unable  to

          convince the trial court  that they will probably succeed  on the

          merits will  not obtain interim  injunctive relief.   See,  e.g.,
                                                                ___   ____

          LeBeau v. Spirito, 703  F.2d 639, 645 (1st Cir.  1983) (affirming
          ______    _______

          denial  of   preliminary  injunction  and  ending  inquiry  after

          concluding  that  plaintiffs  were  unlikely to  prevail  on  the

          merits).

                    When  the  district  court  applies the  correct  legal

          standard in evaluating a motion for a preliminary injunction, its

          decision  to  grant  or  deny  relief  is  subject  to  abuse-of-

          discretion review and  will, therefore, be  afforded considerable

          respect.  See  Independent Oil & Chem. Workers of Quincy, Inc. v.
                    ___  _______________________________________________

          Procter & Gamble  Mfg. Co.,  864 F.2d  927, 929  (1st Cir.  1988)
          __________________________

____________________

               3The remaining aspects of the four-part test involve (1) the
          potential  for irreparable  injury, (2)  the relevant  balance of
          hardships if the restrainer does  or does not issue, and (3)  the
          effect  on  the  public   interest  of  granting  or  withholding
          temporary injunctive relief.   See Narragansett Indian Tribe, 934
                                         ___ _________________________
          F.2d at 5.

                                          5

(collecting cases).   The court of appeals will  find an abuse of

          discretion in  this wise only  "when a material  factor deserving

          significant weight is ignored, when an improper factor  is relied

          upon,  or when all proper  and no improper  factors are assessed,

          but  the [trial] court makes a serious mistake in weighing them."

          Id. 
          ___

                                   B.  Discussion.
                                   B.  Discussion.
                                       ___________

                    In this  case, the lower court  apprehended the correct

          legal standard and rested its ruling explicitly on the absence of

          probable success.  Thus, we are left to ponder a single question:

          did  the  court misuse  its  discretion  in concluding  that  the

          plaintiffs  would  likely  lose   their  case  because  of  their

          inability to demonstrate that the ban on mustaches was arbitrary?

          The  Supreme Court's opinion in  Kelley v. Johnson,  425 U.S. 238
                                           ______    _______

          (1976), compels a negative answer to that inquiry. 

                    In   Kelley,   plaintiffs   brought  a   constitutional
                         ______

          challenge to a grooming regulation that was part of  a network of

          rules  emphasizing "the  overall need  for discipline,  esprit de

          corps, and uniformity" within  a police department.  Id.  at 246.
                                                               ___

          Acknowledging   the   deference   due   government   agencies  in

          implementing their  chosen organizational modes, see  id. at 247,
                                                           ___  ___

          the  Court held  that the  plaintiffs could  defeat  the grooming

          regulation only by showing that it was so irrational as to  verge

          on the arbitrary.   See id. at 248.   The regulation cleared this
                              ___ ___

          rather   modest   hurdle  because   maintaining   "similarity  in

          appearance,"  either to  abet  the public's  easy recognition  of

6

police officers or to promote a sense of "esprit de corps"  among

          the   troopers   themselves,   was   "a   sufficiently   rational

          justification" for requiring that gendarmes be clean shaven.  Id.
                                                                        ___

                    Kelley's grip on  the instant case is unrelenting.  The
                    ______

          Order at issue here is roughly comparable to that endorsed by the

          Kelley Court.  It is, therefore, presumptively valid.  See id. at
          ______                                                 ___ ___

          247.   The plaintiffs have not undermined this presumption in any

          significant  respect.   They  presented no  evidence which  would

          compel a court  to conclude that the Order is  chimerical.  To be

          sure,  they have  argued  that the  "no  mustache" rule  lacks  a

          rational basis4 - but  merely making such a claim does  not prove

          the point.

                    The sole factual support for plaintiffs' argument seems

          to be  the happenstance  that other organizations,  including the

          United States Marine Corps and several state police forces, enjoy

          a strong sense of camaraderie while  permitting officers to sport

          mustaches and other  barbigerous adornments.  Yet, rules  are not

          irrational simply because they differ  from the rules employed by

          other  organizations with similar goals.  See id. at 246 (holding
                                                    ___ ___

          that  the constitutional validity of an organizational structure,

          with its implementing  regulations, "does not depend . . . on any

          doctrine of historical prescription").

____________________

               4Appellants also  asseverate that the "no  mustache" rule is
          arbitrary  because it  is  the only  grooming  standard, of  many
          promulgated, that  has been specifically enforced.   However, the
          record does not adequately support the asseveration.  Even so, we
          fail to see why  a constitutionally valid rule would  be rendered
          invalid merely because other, similar rules are poorly enforced.

                                          7

The plaintiffs'  failure to adduce meaningful  proof of

          arbitrariness  stands  in  stark   contrast  to  the  defendants'

          proffer.  Colonel  Henderson's affidavit  makes pellucidly  clear

          that the justification behind the "no mustache" rule is very much

          the  same  type of  rationale accepted  by  the Kelley  Court and
                                                          ______

          consistently honored in later  cases.  See, e.g., Maciariello  v.
                                                 ___  ____  ___________

          Sumner, 973 F.2d 295, 300 (4th Cir. 1992); Egger v. Phillips, 710
          ______                                     _____    ________

          F.2d  292, 319 (7th  Cir.) (collecting cases),  cert. denied, 464
                                                          _____ ______

          U.S. 918 (1983); Waters v. Chaffin, 684 F.2d 833, 839  (11th Cir.
                           ______    _______

          1982).   Colonel Henderson  explained that, when  confronted with

          the  task of  melding a  cohesive unit  instilled with  a "common

          purpose" and a "shared mission" from disparate parts,  he thought

          it highly desirable  to begin from "a consistent starting point."

          To that end, he concluded that "consistency  in appearance" would

          help  to develop "shared pride"  and "esprit de  corps" among the

          more than 2,000 men and women  of the fledgling department.  And,

          inasmuch as the rule requiring officers to be clean shaven is the

          same  rule  that  previously  governed the  "old"  State  Police,

          implementing a standard so closely identified with a majority  of

          the members of the  "new" State Police would enhance  the chances

          of a successful consolidation.

                    Although the district court was not bound to accept the

          Henderson affidavit at face value,  it was certainly entitled  to

          credit the  Colonel's assessment of the  situation   particularly

          when,  as in this instance,  the Colonel's stated  views were not

          inherently implausible, internally inconsistent,  or contradicted

8

by other credible evidence.  At the preliminary injunction stage,

          it   is,  after  all,  "the  district  court's  duty     and  its

          prerogative     to assess  the  facts,  draw whatever  reasonable

          inferences it might favor,  and decide the likely ramifications."

          Independent Oil  & Chem.  Workers, 864  F.2d at  933.   The court
          _________________________________

          below appears to have followed this protocol faithfully.  No more

          was exigible.

III.  CONCLUSION
          III.  CONCLUSION

                    We need go no further.5   "Likelihood of success cannot

          be  woven from the gossamer threads  of speculation and surmise."

          Narragansett Indian Tribe, 934  F.2d at 6.   Here, Kelley cast  a
          _________________________                          ______

          large  shadow  over  plaintiffs'   case.    The  district  court,

          evaluating  the dimensions  of  this  shadow, denied  preliminary

          injunctive relief.  Because plaintiffs have not persuaded us that

          the  lower  court   overlooked  pertinent  factors,  focused   on

          inappropriate factors,  or made a  serious error in  weighing and

____________________

               5Given the  weakness of plaintiffs'  case on the  merits, an
          analysis of  the other factors bearing  on preliminary injunctive
          relief  would be supererogatory.  See,  e.g., Coalition for Basic
                                            ___   ____  ___________________
          Human Needs v.  King, 654 F.2d 838, 841 (1st  Cir. 1981) (holding
          ___________     ____
          that even  "excruciatingly obvious"  injury is irrelevant  when a
          plaintiff has not demonstrated likely success on the merits).  We
          pause, however, to note that, in their  discussion of irreparable
          harm, appellants mistakenly focus  on the psychological damage an
          altered  facial  appearance  ostensibly  creates.   In  light  of
          Colonel  Henderson's  decision  delaying  implementation  of  the
          grooming  rule,  see supra  note 2,  the appropriate  inquiry for
                           ___ _____
          purposes of irreparable harm is not psychic harm, but whether the
          mustachioed  officers' temporary  designations as  special police
          officers will have lasting effects.

                                          9

balancing the relevant  concerns, we cannot  intervene.  On  this

          jubate  record, there  is  scant reason  for  suspending the  "no

          mustache" regulation.

The denial of the  motion for preliminary injunction is
                    The denial of the  motion for preliminary injunction is
                    _______________________________________________________

          affirmed.  Costs to appellees.
          affirmed.  Costs to appellees.
          ________   __________________

10