Piscottano v. Murphy, No. 05-3716 (2d Cir. 2007)
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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 8 9 10 Docket No. 05-3716-cv _________________________________________________________ GARY PISCOTTANO, MARK J. VINCENZO, WALTER C. SCAPPINI II, and JAMES KIGHT, 11 Plaintiffs-Appellants, 12 13 14 15 16 - v. BRIAN MURPHY, Deputy Commissioner, Department of Correction, individually, and THERESA C. LANTZ, Commissioner, Department of Correction, individually 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 2 3 KATHLEEN ELDERGILL, Manchester, Connecticut (Beck & Eldergill, Manchester, Connecticut, on the brief), for Plaintiffs-Appellants. 4 5 6 7 8 9 GREGORY T. D'AURIA, Associate Attorney General, Hartford, Connecticut (Richard Blumenthal, Attorney General of the State of Connecticut, Margaret Q. Chapple, Assistant Attorney General, Hartford, Connecticut, on the brief), 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 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. 29 that the district court erred (1) in finding the "public concern" 30 test applicable to their expressive association claims and failing Connecticut Department of Correction ("DOC" or the On appeal, plaintiffs contend principally -2- 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. 6 contentions and affirm the judgment. For the reasons that follow, we reject all of plaintiffs' 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 12 undisputed. 97 (D. Conn. 2004) ("Piscottano I"), were largely 13 Prior to April 2004, plaintiffs were employed by DOC as 14 correctional officers in various prisons in the State of Connecticut 15 ("State"). 16 years, Vincenzo for 18½ years, Scappini for 9 years, and Kight for 17 11½ years. 18 pursuant to Cleveland Board of Education v. Loudermill, 470 U.S. 19 532, 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"). 23 November 2004, Vincenzo was discharged after a further Loudermill 24 hearing. 25 Piscottano had been so employed for approximately 18 538-41 In April 2004, following a hearing for each plaintiff (1985) ("Loudermill hearing"), DOC terminated the In Defendant Theresa C. Lantz, with nearly three decades of -3- 1 experience in prison administration as, inter alia, correctional 2 officer, 3 commissioner, became DOC's Commissioner in March 2003. 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. 8 by Murphy; the final decisions to impose those disciplines were made 9 by Lantz. 10 A. counselor, training manager, warden, and deputy Defendant The disciplines imposed on plaintiffs were recommended 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 19 1. Information from the Federal Government 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. 24 received by DOC, contained descriptions of Outlaws activities and 25 the results of investigations by the Bureau of Alcohol, Tobacco, and An October 2002 report of NDIC ("NDIC Report"), -4- 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. 7 100-pound quantities of marijuana from Mexico. 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 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. facilities. For example, a Other chapters obtain 1997 As a result of BATF RICO prosecution in 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. 23 in the sale of stolen motorcycle parts and in the exploitation of 24 female associates as prostitutes. 25 illegal activities through, inter alia, the sale of Club merchandise 26 at sponsored events. 27 The OMC is involved It launders proceeds of its The NDIC Report also stated that the Outlaws has a history -5- 1 of violent rivalry with the Hells Angels Motorcycle Club ("Hells 2 Angels" or "HAMC"), involving incidents of bombing, arson, and 3 murder. 4 United States as its own territory, the report noted that newly 5 established Outlaws chapters in the United States 6 7 8 9 10 11 Although the Hells Angels had viewed the northeastern includ[ed] 8 chapters in the HAMC-controlled states of Connecticut, Massachusetts, New Hampshire and New York. This expansion as well as reports of stockpiling weapons and body armor in preparation for confrontations has heightened tensions between 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 20 investigation included checking the registrations of the motor 21 vehicles parked at the Outlaws compound. 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. 26 out" party Other in police Waterbury in May 2002. The police Those inquiries revealed The police relayed this information to DOC. surveillances were conducted of Outlaws 27 parties held on various dates in 2003, including May 24, July 17, 28 and September 6. 29 to DOC's Security Division ("Security Division" or "SD"), showing The police sent videotapes and still photographs -6- 1 Piscottano, Vincenzo, Scappini, and Kight at one or more of those 2 parties. 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. 6 Hearing Transcript ("Tr.") at 222, 269.) 7 information concerning DOC investigations, including those with 8 respect to Piscottano, Vincenzo, and Kight. (See DOC 2003 Report at 9 2.) Murphy testified that he first became aware that certain 10 DOC received information (See Preliminary Injunction The reporter requested about the Outlaws and its 11 activities from State Police Trooper Richard Williams, who had long 12 experience 13 gangs--a 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 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 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. "1%" in term belonged patch; investigating derived to that from persons these so-called an who "one-percent" American were patches, -7- Motorcycle motorcycle Association trouble-makers. known as "colors," Williams signify 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. 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. According to 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). 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. The letter stated that at least five DOC -8- (Id.) The letter referred to 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 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"). 12 the DOC unit responsible for investigating questions of serious 13 staff misconduct, for further review. 14 of a conflict of interest," and "[e]ngag[ing] in Lantz forwarded the Anonymous Letter to Murphy and to SD, On July 12, 2003, SD investigator Luis Irizarry conducted 15 surveillance of a party at the Outlaws Waterbury clubhouse. 16 observed Piscottano, Vincenzo, and Kight at that event. 17 2003, Lantz ordered a formal investigation into the Anonymous 18 Letter's allegations. 19 20 1. He In August DOC's September 2003 Interviews of Plaintiffs 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. 25 functions even as non-members. 26 following descriptions of the interviews. All stated that they had attended Outlaws The ensuing DOC report included the -9- 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. 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. He stated that he had attended a number of Outlaws 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." 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. Further, taken in the light most 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. 21 officially resigned in July 2003 and turned in his colors. 22 stated that he had attended some Outlaws functions after resigning 23 from the Club, most recently in the week before his interview. 24 knew that Piscottano had been a member of the Outlaws. 25 He took a leave of absence in June 2003, and he He He Kight said he was "not aware of any illegal activity by 26 any of the members of the club . . . . 27 activity in other states but none in Connecticut as far as [he] -10- There may be criminal 1 kn[e]w." 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. 5 or anything illegal for him while I performed my job." He also stated that he was aware that one Danny Hall, an Kight said of Hall, "[h]e never asked me to do any favors 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 9 Massachusetts. had attended OMC functions in Waterbury and in Brockton, 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. 12 videotaped surveillance of the Outlaws party in Waterbury on July 13 12, 2003, he was seen wearing an Outlaws Support T-shirt. Vincenzo acknowledged that, in a 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. 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. He stated that, 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. 27 Kight, with whom he worked at the Webster CI, at some of the Outlaws -11- He had seen 1 functions. 2 "seen any illegal activity by any member of the Outlaws Motorcycle 3 Club." 4 Outlaws functions and was aware that Hall had been an inmate at the 5 Webster CI. 6 anything illegal while he was incarcerated." 7 2. Scappini stated that he was "not aware of" and had not He said, however, that he had recognized Danny Hall at Scappini stated that Hall "never asked me to do 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. 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 15 activity. Outlaws' 16 The drug DOC trafficking, Report also violence, summarized and the The report other criminal NDIC Report's 17 description of the Outlaws membership requirements, in part, as 18 follows: 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Outlaws members must be male, at least 21 years old and own an[] American-made motorcycle with at least a 1,000 cc engine. To be accepted as a member, an individual must begin as an associate or "hangaround" and must perform some service for the chapter. If chapter officers determine that the hangaround has membership potential, he becomes a "prospect", and when he is deemed ready for formal consideration, he become[s] a "probate". For a period of at least 6 months, the probate officially is evaluated for membership and may be asked to perform some illegal activity to prove his loyalty. To obtain full membership the probate must attend one national event and receive the unanimous vote of -12- 1 2 3 4 5 the chapter. . . . A member in leave the club or change chapters 1 year. However, a member must years with the club before he is OMC emblems and Patches. . . . good standing can at any time after have at least 10 permitted to keep 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Members wear black leather jackets. The club patches, known as colors, are placed on the front and back of the jackets. Outlaws patches are usually black and white lettering. The skull and crossed pistons logo is outline[d] in red and worn on the back of the jacket. OMC members maintain that the skull's glaring red eyes protect the wearer and "watch out for trouble from behind." Above the logo is a top rocker patch with the name Outlaws, below the logo is a bottom rocker that designates the chapter's location. A triangular patch is worn on the left front shoulder with the letters AOA standing for American Outlaws Association surrounding a hand with the middle finger extended. . . . On the other shoulder is worn a triangular 1 % patch. The 1 % refers to a statement made by the former president of the American Motorcycle Association that 99 percent of the motorcycling public are honest, law abiding citizens and that only 1 percent are trouble makers. A patch with the letters GFOD, standing for the Outlaws' motto "God Forgives, Outlaws Don't" also is worn on the front of the jacket. 29 30 31 32 33 34 35 36 37 Associates and prospects wear only front patches to identify their status. Probates wear upper Probationary and lower Outlaws rocker patches on their backs. Female associates wear the traditional OMC back patch with "Property of" on the top rocker and the name of the owner on the bottom rocker. . . . Colors are held in the highest esteem. A member who loses his colors is fined $500 and demoted to probate status. 38 39 (DOC 2003 Report at 4 (emphases added).) 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. 43 statements by Piscottano and Kight that they had "gotten out [of the 44 Outlaws] early in 2003" were questioned, given that during the -13- In particular, the 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." 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. 9 observation was made by Irizarry, who conducted surveillances of the 10 (DOC 2003 Report at 14.) Kight, during that One such Outlaws and was the author of the DOC 2003 Report: 11 12 13 14 15 16 17 18 19 20 On September 5, 2003 while out with friends at Carmine's Café in Waterbury, Major Irizarry observed several individuals on motorcycles arrive outside of the Café. All of the individuals we[re] wearing leather jackets or vest[s] identifying them with the Outlaws Motorcycle Club. Major Irizarry positively identified Officer James Kight as one of the individuals that was with the group. Officer Kight was observed wearing a leather jacket with the 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. 25 his colors upon arriving and parking in front of the Café.").) But I clearly observed him wearing 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. 29 14.) 30 . . . were wearing full patched Outlaw jackets." 31 Attending a later Outlaws event was a felon who had just been 32 released from prison in July 2003. (See id. at At a May 2003 Outlaws event, several of the "known felons -14- (Id. at 12.) (See id. at 14; see also id. at 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).) 4 matter of "clear concern" that 5 6 7 8 9 10 11 12 The report stated that it was a correctional staff [are] associating with known felons and other members of this organization. The information in this report identifying the criminal involvement, producing and distributing of methampheta[m]ine and other narcotics indicates that the Outlaws Motorcycle Club are [sic] becoming a great threat to the general public and law enforcement agencies. 13 (Id. at 15.) 14 the 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." 21 officers were therefore "in clear violation" of Directive 2.17. 22 (Id. at 15.) The report found that by associating with the Outlaws, correctional 23 The officers in question (Id. at 15-18.) DOC 2003 had, inter alia, (1) The report concluded that the 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." 27 Report concluded, inter alia, that "[i]t has been determined that 28 . 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." . . Piscottano[] and Kight (Id.) -15- were not (Id.) truthful The DOC during the 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. 13 February 2004, an individual report ("SD 2004 Report") was prepared 14 with respect to each of the plaintiffs. 15 historical perspective of the Outlaws set out in the DOC 2003 Report 16 and noted that 17 18 19 20 21 22 23 24 25 Each report reiterated the [t]hough the OMC has only beg[u]n to become established in New England within the past 5 years, law enforcement sources have stated that there have already been arrests and violent altercations between the OMC and [the Hells Angels]. Though there are several on-going investigations concerning the OMC in New England, law enforcement sources were unable to provide specifics [so] as to not jeopardize the integrity of their cases. 26 (E.g., SD 2004 Report on Piscottano at 3-4.) 27 observation that 28 29 30 31 In Each report added the [a]s with other chapters of the OMC, law enforcement sources expect the newly founded New England chapters to follow suit with the criminal activity of older established chapters, which has been made -16- 1 2 apparent by information on-going investigations, received from current 3 (e.g., 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.). id. at 6), citing as "[a]n example of the criminal 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. 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. As described below, although the September 2003 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. -17- Andrews said he had been 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. 4 occasion and could not say that it was September 5. 5 Report on Kight at 6.) 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). 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. 13 2004 Report on Kight at 6-7.) 14 15 16 17 18 19 20 21 22 23 However, Andrews could not remember the date of that (See SD 2004 On the occasion he recalled, Kight and the The 2004 (SD The report also noted that although Kight stated he had resigned from the Outlaws in July, he has admitted wearing colors during an OMC Christmas Party on December 20, 2003. When asked if the colors were his, Officer Kight stated that the colors were brought down for him to wear out of respect by members of the OMC. Officer Kight admitted wearing an OMC insignia belt while at the Christmas Party. (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. 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. 30 dragged out of the café by one of the Outlaws members. -18- An Kight was The café 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). 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. 12 to the State Police, Kight's "injuries were inconsistent with a fall 13 and 14 altercation." were 15 Kight admitted that he had been at Chaser's Café on the (See SD 2004 Report on Kight at 7-9.) consistent with someone involved in According a physical (Id. at 7.) The SD report found, inter alia, that although Kight 16 contended 17 considered a conflict of interest, 18 19 20 21 22 23 24 that he had not engaged in conduct that would be he continues to associate himself with members of the OMC by attending functions such as the Christmas Party on December 10 [sic], 2003[, e]ven after being placed on Administrative Leave by the DoC for his association with a known criminal entity, which is currently being investigated by State and local law enforcement for criminal/illegal activities. 25 (SD 2004 Report on Kight at 9.) 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. 30 10.) The report concluded that Kight had -19- (Id. at 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 5 Piscottano failed to provide detailed information in response to 6 most of SD's questions. 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. clarification of his proffered mitigation, but that He said he had no knowledge about the (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 14 The report noted that Piscottano placed his resignation from the Outlaws in the spring of 2003, but that 15 16 17 18 19 20 21 22 23 24 he stated that he still attended OMC functions including parties at the Waterbury OMC clubhouse and Lobsterfest in Brockton, Massachusetts (party sponsored by the Brockton OMC). Officer Piscottano also stated that most recently he attended a Christmas party at the Waterbury OMC clubhouse on December 20, 2003 (the party followed Officer Piscottano's Loudermill and being advised that his involvement with the organization may result in his dismissal from state service). 25 (Id.) 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 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. SD had learned of Piscottano's presence at the Outlaws (although they had "extreme (Id.) -20- difficulty entering the In his SD interview, Piscottano 1 was critical of the police, stating "I couldn't believe they were 2 doing this at a Christmas party." 3 SD Interview of Piscottano, at 12.) (Transcript of December 22, 2003 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). 7 said he was unsure whether he had ever been there; and said he did 8 not know, offhand, where it was located. 9 however, that the café "employee was shown several pictures of OMC 10 members and clearly identified Officer Piscottano and Officer Kight 11 as 12 colors." being Piscottano denied being at that café on that date; involved in the altercation while The report stated, wearing their OMC (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. 17 that he did not know what had precipitated Kight's admittance to the 18 hospital, "nor did he inquire." However, despite that visit, Piscottano stated (Id.) 19 The SD report found that 20 21 22 23 24 25 26 27 28 29 [u]pon review of Officer Piscottano's Loudermill reply and questioning to clarify his alleged mitigation, this office has concluded that Officer Piscottano continues to be actively involved with the Outlaw Motorcycle Club and was less than truthful in regards to his membership. Though Officer Piscottano alleged that he is no longer a member of the OMC, this office has not been presented with any mitigating evidence that would support this claim. . . . 30 31 32 33 34 This office has also determined that Officer Piscottano was less than truthful in regards to the incident at Chaser's Café on October 25, 2003, where Officer Kight was struck in the face and knocked unconscious by members of the Crossroads Motorcycle -21- 1 2 3 4 Club and James Gang (motorcycle club). Officer Piscottano was identified (via photograph) by an employee of the café as being present during the melee, though he stated that he was not. 5 (Id. at 7.) 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.) The report also found it less than credible that 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." 17 at 8.) 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. 22 3. (SD 2004 Report on Piscottano The report concluded that Piscottano had violated Directive (See id.) Vincenzo 23 The post-Loudermill hearing report on Vincenzo described 24 an interview in which Vincenzo reiterated the statements he had made 25 during 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 his September 2003 interview -22- that, inter alia, he had 1 committing any crimes. 2 of whom Vincenzo had inquired and with the security director; both 3 essentially substantiated Vincenzo's account. 4 Vincenzo at 7-8.) SD investigators spoke with the DOC captain (SD 2004 Report on 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.) 9 events in the past, he had not done so since September 2003. Vincenzo stated that although he had attended Outlaws The 10 report indicated that SD had received no information indicating 11 Vincenzo's presence at any Outlaws event since that time. 12 at 8.) (See id. 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. 17 4. (See id. at 8-9.) 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 24 information indicating Scappini's presence at any Outlaws event 25 after May 24, 2003. at 7.) The report stated (See id.) -23- that SD had received no 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. 5 5. (See id. at 7-8.) 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 sought 12 corroborating 13 enforcement agencies in Massachusetts and New Hampshire, and from 14 federal agencies including the BATF and the United States Drug 15 Enforcement Administration. 16 information [he] got, the more [he] became concerned." 17 236.) receiving the NDIC information Report, from he the had State and Police, (See Tr. 231-32.) received from law And "the more (Id. at 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. 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. 26 no incidents in DOC-run prisons involving the Outlaws, and the (See Tr. 235, 258.) -24- Murphy Although there had been 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 4 Motorcycle Club is listed as a safety threat group within the 5 federal prison system (see, e.g., id. at 293). 6 by In the his Federal Bureau memorandum to of Prisons Lantz, that Murphy the Outlaws 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." 18 "retaliation by inmates." 19 ("CSP") task force member had reported on his recent conversation 20 with a leader of the Hells Angels in which 21 22 23 24 25 26 27 (Id.) Such an officer could also be subjected to (Id.) For example, a State Police the Hells Angels leader notified the CSP member of "cops" being with the Outlaws; referring to the correctional officers. The Hells Angels leader spoke of the feud with OMC, and warned that the officers were in jeopardy due to their membership with OMC. (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.) 3 4 5 6 7 8 Murphy concluded that [t]he staff members who do not appear to be members [of the Outlaws] should be warned that continued involvement with this gang may result in termination from state service. Those positively identified as members should be dismissed from state service. (Id. at 3.) 9 Lantz agreed with Murphy's assessments and concerns. (See 10 generally Tr. 326-27.) 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.) 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 22 23 24 25 26 27 At the preliminary injunction hearing, she Lantz testified that the concerns for possible we have a finding of untruthfulness and if no action is taken and they're allowed to go back to work or allowed to carry out their duties, anything else they might do in the performance of their duties could make the agency quite vulnerable by the fact that the agency has already found them untruthful. (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 31 dismissed, effective May 6, 2004, for violating Directive 2.17. The 32 letter to Kight stated, in pertinent part, as follows: they were respectively assigned, -26- that they were being 1 2 3 4 This letter serves to inform you that you are being dismissed from State Service for just cause as evidenced by your violation of Administrative Directive 2.17. 5 6 7 8 9 10 11 Specifically, based upon a Security Division investigation into your conduct, it was determined that you were less than truthful when questioned about your association with the Outlaw[s] Motorcycle Club. Your failure to be truthful jeopardizes the safety and security of yourself, your co-workers and the inmates, which cannot be tolerated or condoned. 12 (Letter from Warden James E. Dzurenda to Kight dated April 22, 13 2004.) 14 (See Letter from Warden Wayne T. Choinski to Piscottano dated April 15 21, 2004.) Piscottano's termination letter was essentially the same. 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." 21 Letter from Warden James E. Dzurenda to Scappini dated April 22, 22 2004.) 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." 26 6. (E.g., The counseling letters stated that "[t]his type of conduct (E.g., id.) 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. 3 response prior to the July 11 event. Vincenzo received a copy of Lantz's 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 12 approximately 3:43 p.m. 13 2.) 14 Outlaws, and remained in the company of Outlaws members until those 15 attending the party departed at approximately 6:10 p.m. 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." p.m., Vincenzo was seen arriving at the AmVets hall at (See SD August 2004 Report on Vincenzo at He parked his motorcycle, greeted and hugged members of the "Vincenzo (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. . . . 26 somewhere around there.")). 27 arrival he hugged and shook hands with members of the Club, that I think I went down there about five, five thirty Vincenzo acknowledged that upon his -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 8 hearing, Lantz determined that Vincenzo should be dismissed for 9 violating Directive 2.17. 10 D. or other discipline. Following the new Loudermill He was discharged on November 19, 2004. 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 17 violated, 18 Plaintiffs 19 requiring rescission of the disciplinary actions. See Piscottano I, 20 317 F.Supp.2d at 99-102. counseling letters, asserting claims inter alia, plaintiffs' moved, unsuccessfully, that First for a those actions Amendment rights. preliminary injunction 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. 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] -29- . . . [e]ngage[ment] To in 1 unprofessional . . . behavior, both on and off duty, that could in 2 any 3 "unconstitutional as applied in this case, in that it violates the 4 First Amendment because it is . . . void for vagueness" (Complaint 5 ¶¶ 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). manner 26, 27), 9 reflect and that negatively defendants' on the imposition Department," of discipline is on Following a period of discovery, both sides moved for 10 summary judgment. 11 Amendment 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. 18 is not unduly vague as applied to plaintiffs' association with the 19 Outlaws. claims, Defendants sought summary dismissal of the First arguing principally (1) that plaintiffs' They argued that Directive 2.17 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' 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. 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.'" 22 1424394, at *3 (quoting Cobb, 363 F.3d at 102). 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. cross-motion. The court dismissed See id. at *5-*6. -31- plaintiffs' The district court Piscottano II, 2005 WL Although the Cobb The district court 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. 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 . . . ." 15 accordingly dismissed plaintiffs' expressive association claims. 16 See id. at *4. As to The court also concluded that plaintiffs plaintiffs' intimate Id. at *2. The court 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 20 parties--are freely open to non-members," it was "apparent that [the 21 Outlaws] 22 particularly selective organization." 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." and is events--such not a small as motorcycle group" and that rides, it cookouts also Id. at *7. is not and "a The district 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 2 disciplined because of their association with the Outlaws, and not 3 because 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' as discipline of any and viewing plaintiffs untruthfulness, Motion for Summary Directive Judgment and as having 2.17 in is Support been not 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. 18 "continued to attend Outlaws events even after being placed on 19 administrative leave pending DOC's full investigation of their 20 association 21 continued to attend the Outlaws' activities even after being told 22 expressly 23 termination," id. 24 25 26 27 28 29 30 31 The court also noted that Kight and Piscottano had with that the Outlaws," attending id., Outlaws and that events "Vincenzo would result The district court concluded that [t]here can be no serious dispute that a reasonable corrections officer would recognize that a regulation prohibiting him from "[e]ngaging in unprofessional or illegal behavior--on or off duty-that could negatively reflect on the department" would bar him from associating with a group that has been identified, at least at the national level, as having been involved in criminal and gang-related -33- also in 1 2 activities. Id. (quoting DOC Employee Handbook). 3 Finally, the court rejected the claims of Piscottano and 4 Vincenzo 5 supervisors had misled them to believe that the directive did not 6 prohibit their association with the Outlaws. 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. 12 Piscottano and Vincenzo had not asserted any claim of estoppel. See 13 id. 14 that Directive 2.17 is impermissibly vague Id. at *13. because Citing The court noted that Judgment was entered dismissing the Complaint in its 15 entirety. 16 association, intimate association, and void-for-vagueness claims. On this appeal, plaintiffs pursue their expressive 17 II. 18 In FREEDOM OF EXPRESSIVE ASSOCIATION 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 2 district court. 3 A. claims, although our analysis differs from that of the 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." 9 amend. I. U.S. Const. 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." 12 v. James, 408 U.S. 169, 181 (1972). Healy 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. 23 by association alone, without [establishing] that an individual's 24 association 25 impermissible basis upon which to deny First Amendment rights." Id. 26 (internal quotation marks omitted). poses the threat feared -35- by the "[G]uilt Government, is an 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." 6 U.S. 563, 568 (1968). More than "[o]ne hundred years ago, the 7 [Supreme] the 8 'promot[ing] efficiency and integrity in the discharge of official 9 duties, and [in] maintain[ing] proper discipline in the public Court noted Pickering v. Board of Education, 391 government's 10 service.'" 11 legitimate purpose in Ex parte Curtis, 106 U.S. 371, 373 (1882)). 12 13 14 15 16 17 18 19 20 21 Connick v. Myers, 461 U.S. 138, 150-51 (1983) (quoting "To this end, the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch. Prolonged retention of a disruptive or otherwise unsatisfactory employee can adversely affect discipline and morale in the work place, foster disharmony, and ultimately impair the 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 25 26 27 28 When someone who is paid a salary so that she will contribute to an agency's effective operation begins to do or say things that detract from the agency's effective operation, the government employer must 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 32 33 34 35 36 powers than does the government as sovereign." Id. at 671. The key to First Amendment analysis of government employment decisions . . . is th[at t]he government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts -36- 1 2 3 4 5 6 7 8 as sovereign to a significant one when it acts as employer. The government cannot restrict the speech of the public at large just in the name of efficiency. But where the government is employing someone for the very purpose of effectively achieving its goals, such restrictions may well be appropriate. 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. 17 18 19 20 21 22 Accordingly, [t]he problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. 23 Pickering, 391 U.S. at 568. 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). See also Garcetti v. Ceballos, 126 S. 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")): 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. (1) whether the employee's speech as a -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. 6 th[is] threshold test[,] Pickering balancing does not come into 7 play." 8 speech "cannot be fairly characterized as constituting speech on a 9 matter of public concern, it is unnecessary for us to scrutinize the See, e.g., Roe, 543 U.S. at 84. If the employee "fails Id.; see, e.g., Connick, 461 U.S. at 146 (if the employee's 10 reasons for her discharge"). 11 employee's expressive conduct was speech as a citizen on a matter of 12 public concern. 13 First Amendment claim arises." 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." 16 2. Thus, we ask first whether the "If the answer is yes, then the possibility of a Garcetti, 126 S. Ct. at 1958. "If Id. 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. 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- In considering a First 1 Amendment, protect." 2 e.g., id. at 148 n.7 ("The inquiry into the protected status of 3 speech 4 (plurality opinion) ("it is the court's task to apply the Connick 5 test to the facts"). is 6 7 one of Id. (internal quotation marks omitted); see, law, not fact."); Waters, 511 U.S. at 668 The question of what is a matter of public concern is not amenable to a simple, definitive answer. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Nonetheless, Connick provides some guidance. It directs courts to examine the "content, form, and context of a given statement, as revealed by the whole record" in assessing whether an employee's speech addresses a matter of public concern. [461 U.S.] at 146-147. In addition, it notes that the standard for determining whether expression is of public concern is the same standard used to determine whether a common-law action for invasion of privacy is present. Id., at 143, n. 5. That standard is established by our decisions in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), and Time, Inc. v. Hill, 385 U.S. 374, 387-388 (1967). These cases make clear that public concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern 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 28 community"). 29 3. matter of political, social, or other concern to the 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. 33 e.g., United States v. National Treasury Employees Union, 513 U.S. 34 454, 466 (1995) ("NTEU"). Justifications -39- may include See, such 1 considerations as maintaining efficiency, discipline, and integrity, 2 preventing 3 judgment and professionalism of the agency brought into serious 4 disrepute. disruption of operations, and avoiding having the 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. 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." "[W]e do not see the necessity for an employer to allow 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." 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. -40- Id. at 151-52; see, e.g., See id. at 676-77 1 (plurality opinion). 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 If the employer meets this test, it may, as a 10 employer's operations. 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 Where there is no such nexus, the state's In NTEU, the Supreme Court considered a federal statute 16 that 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. 21 concern--they 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 prohibited lower-level federal government employees from While their speech was evidently on topics of public were offered compensation -41- by public groups and 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." 6 "no nexus to Government employment," the Court stated, "no corrupt 7 bargain or even appearance of impropriety appears likely." 8 474. Id. at 476. With Id. at 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. 15 government predictions of harm used to justify restriction of 16 employee 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. Although the Court had normally "'given greater deference to speech than to predictions of harm used to justify 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 27 dubious claim of administrative convenience." a much stronger justification -42- than the Government's Id. at 474. 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." 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. 14 commentary on the workings or functioning of the San Diego police 15 department. 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. 20 79. 21 city, alleging that the termination violated his First Amendment 22 rights. 23 his expressive conduct was not on a matter of public concern. 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. Roe, 543 U.S. at 81. The plaintiff in Roe, an officer of His presentations did not include any When the SDPD ordered Roe to cease selling sexually See Roe, 543 U.S. at 78- After internal proceedings, Roe was discharged. He sued the The district court dismissed his claim on the ground that -43- The 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." 4 U.S. at 84. 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. 8 police department into serious disrepute: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Roe, 543 It also found NTEU entirely inapplicable because "[i]n Roe's conduct, in contrast, brought the Although Roe's activities took place outside the workplace and purported to be about subjects not related to his employment, the SDPD demonstrated legitimate and substantial interests of its own that were compromised by his speech. Far from confining his activities to speech unrelated to his employment, Roe took deliberate steps to link his videos and other wares to his police work, all in a way injurious to his employer. The use of the uniform, the law enforcement reference in the Web site, the listing of the speaker [in his advertising] as "in the field of law enforcement," and the debased parody of an officer performing indecent acts while in the course of official duties brought the mission of the employer and the professionalism of its officers into serious disrepute. 26 Id. at 81. 27 conceded that Roe's activities were "'unrelated'" to his employment, 28 the Supreme Court reasoned that 29 30 31 32 33 34 35 36 37 38 Although the court of appeals stated that SDPD had the proper interpretation of the City's statement is simply to underscore the obvious proposition that Roe's speech was not a comment on the workings or functioning of the SDPD. It is quite a different question whether the speech was detrimental to the SDPD. On that score the City's consistent position has been that the speech is contrary to its regulations and harmful to the proper functioning of the police force. The present case falls outside 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."). -44- In sum, to have a 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. 5 The Record in the Present Case 1. 6 Application of the Public Concern Test With these principles in mind, we begin by addressing 7 plaintiffs' 8 inapplicable 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 12 Piscottano, Kight, and Vincenzo are concerned--and their contention 13 are erroneous. conclude contention to claims that both that Connick's asserting their public violation concession--at concern of the least test is right to so far as 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. 20 102-07 (2d Cir. 2004). 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 26 establishment of a violation of the expressly protected right from derivative right See, e.g., Cobb v. Pozzi, 363 F.3d 89, Given that freedom of speech is expressly on less -45- proof than is required for 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. 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. Thus, concessions by the parties are not 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. 11 on a matter of public concern. 12 association 13 vicariously, expressive conduct on a matter of public concern. 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 19 necessarily--constitute approval or an endorsement of the nature and 20 character of the organization. 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. First, the organization itself may engage in advocacy with with the the If it does, the individual's organization organization may constitute, may--although it at least does See not Such approval or endorsement itself 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. 27 was no evidence to the contrary; and Kight, for example, testified -46- There 1 that what the Outlaws is "all about" is riding motorcycles, having 2 parties, and "hav[ing] fun." 3 (Scappini: 4 Outlaws 5 plaintiffs' concession to the extent that it meant that they are not 6 engaged 7 vicariously by reason of advocacy by the OMC itself. (Tr. 103; see also id. at 137 Outlaws functions are "social"); id. at 6 (Piscottano: is in essentially expressive "a social conduct club").) on matters Thus, of we public accept concern 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 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. 17 above.) 18 Connecticut chapter is affiliated is a matter of public concern. character 19 of the national organization with which the (See Part I.A.1. Plainly, the nature of the organization with which the The conduct of three of these plaintiffs can easily be 20 seen 21 chapter, the national organization with which it is affiliated, and 22 other Outlaws chapters. 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. 27 in motorcycle gangs, testified that Outlaws colors are a source of as expressing their view--approval--of the Outlaws local DOC presented evidence that Piscottano and State Police Trooper Williams, an expert -47- 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 8 affiliation with the national organization--and the resulting close 9 relationship with other Outlaws chapters--is one of the stated or convicted of a crime, the Connecticut chapter's 10 attractions 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 15 Interrogatory 16 Interrogatory No. 8 (same); Vincenzo Answer to DOC Interrogatory No. 17 8 (same).) 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 23 24 25 26 of as associating a brother." No. 8 with the (E.g., (emphasis Outlaws. Piscottano added); Kight Three of the Answer to DOC Answer to DOC (We note that Vincenzo gave this answer despite having Well, I was just down in Daytona last month or maybe four to six weeks ago, whatever, and I was down there at a party down there and they brought the colors down to me and I wore them while I was down in Daytona. 27 (Tr. 104.) 28 associations with members of other Outlaws chapters that may well be 29 conducting criminal enterprises. Thus, Piscottano, Kight, and Vincenzo treasure their -48- Their wearing of Outlaws colors 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 7 testimony. 8 contrary to the NDIC report, that other chapters have not engaged in 9 criminal activity. 10 11 12 13 14 in the world," and by their Complaint and in-court In their Complaint, plaintiffs have taken the position, They alleged that [t]he DOC Report contains information purportedly gathered from an October 2002 "National Drug Intelligence Center" publication and from an anonymous source which is entirely false and without basis in fact . . . . 15 (Complaint 16 preliminary injunction hearing, testified as follows: 17 18 19 20 ¶ 18 (emphasis added).) And Piscottano, at the Q. Th[e DOC 2003 Report] contains a whole section which has at the beginning, the following information was gathered from The National Drug 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).) 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.) Thus, in denying that other Outlaws -49- 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. 12 reflected 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. 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 23 constituted speech by these three plaintiffs on a subject that is a 24 matter of public concern. In addition, in this case we note that public concern was in approval two of other the ways. First, organization thus the investigation into Second, these officers' criticized by others, 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 -50- 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. 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. 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. And SD found no evidence that he We conclude that the record does not support an 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. 19 difficulty in concluding that the record shows that the balance is 20 in favor of DOC. 21 2. That said, we have no 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. -51- The evidence sufficiently 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 14 colors, were involved and Kight was hit in the face by a member of 15 the 16 Department. 17 bystanders. At the Chaser's Café altercation, for example, gunshots 18 were fired. Café employee, Crossroads Piscottano Motorcycle Such fights and Kight, Club--reflect also wearing negatively frequently imperil Outlaws on the innocent 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 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"). 27 has a legitimate interest in reducing such risks, without having to DOC's experiences with -52- respect to the gang-related DOC 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. 5 members participate in task forces focusing on gang activity. 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 For example, Lantz testified that DOC staff The warrants. 11 Moreover, DOC has an interest in avoiding even the 12 appearance that 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. 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. 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 . . . ." 24 prospect that the favors will be returned, creating the appearance 25 of a potential conflict of interest. 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 its correctional (Tr. 103.) officers have conflicts of As Kight Any acceptance of favors raises the -53- And Kight's acceptance of 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 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. member of the Hells Angels. Even in the absence of such 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. 15 him not to abuse Outlaws rivals: 16 17 18 19 20 21 22 23 24 According to Piscottano, the Outlaws itself instructed When I was a member of the Outlaws Motorcycle Club ("Club"), I was expressly instructed that under no circumstances should I take action of any kind, or retaliate in any way, against any member of any other motorcycle club, should I happen to encounter one in the course of my work as a correctional officer. According to the Club, everyone is neutral in the prison setting, everyone gets along and there is no competition or rivalry of any kind. 25 (Affidavit of Gary Piscottano dated February 7, 2005, ¶ 9.) 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- Even 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 4 integrity of its operations outweighed the associational interests 5 of 6 expressive-association claims were properly dismissed. interest those in maintaining plaintiffs. 7 III. 8 the efficiency, Accordingly, security, plaintiffs' and freedom-of- FREEDOM OF INTIMATE ASSOCIATION 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 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 25 congeniality"). such attributes are as "size, relative purpose, smallness, policies, a high degree selectivity, of [and] 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." 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"). Id. at 619; see, e.g., Pi Lambda Phi Fraternity, Inc. 8 Entities such as "large business enterprise[s]," on the 9 other hand, are "remote from the concerns giving rise to this 10 constitutional 11 presented with the issue, the Supreme Court has consistently held 12 that 13 "intimate" associations. 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 large In protection." social the clubs present Roberts, are not 468 U.S. at 620. constitutionally When protected See, e.g., Board of Directors of Rotary 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 27 28 29 Although neither party has specified the precise size of the Outlaws, it is apparent that it is not a small group. . . . The Outlaws is an international organization with chapters in the -56- 1 2 3 4 5 6 7 8 9 United States, Canada, Europe and Australia. . . . Within the United States, there are chapters located in many states, including Wisconsin, Florida, Indiana, North Carolina, Massachusetts, New Hampshire, New York and Connecticut. . . . Indeed, according to Plaintiff Gary Piscottano, "when an [Outlaws] member dies, hundreds of members attend the funeral and offer support and comfort to the family." 10 Piscottano II, 2005 WL 1424394, at *7 (quoting Piscottano Answer to 11 DOC Interrogatory No. 8) (emphasis in Piscottano II). 12 continued: The court 13 14 15 16 17 18 19 20 21 22 Nor is the Outlaws a particularly selective organization. To be sure, membership in the Outlaws is not open to the general public. Membership is extended only by invitation and involves a probationary period. . . . Nevertheless, nothing in the record reveals any onerous requirements for membership. According to Plaintiffs, the group "embraces" those who chose a "non-mainstream, nontraditional, unconventional lifestyle, appearance, ideals and/or job." . . . . 23 24 25 26 27 28 29 30 31 32 33 34 35 It is also undisputed that many of the Outlaws' activities and events--such as motorcycle rides, cookouts and parties--are freely open to nonmembers. . . . This lack of seclusion from the public also militates against a finding that the Outlaws is the type of intimate association that justifies First Amendment protection. See Roberts, 468 U.S. at 621 (finding significant that "numerous non-members . . . regularly participate in a substantial portion" of the Jaycees activities); Duarte, 481 U.S. at [547] (noting that "[m]any of the Rotary Clubs' central activities are carried on 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. 2 the record that shows the existence of any material disputed fact on 3 these 4 application of the above principles. issues, 5 and we We have been pointed to no evidence in see no error in the district court's Nor do we see any error in the court's rejection of 6 plaintiffs' 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. contention that they were disciplined for merely 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 15 officer's 16 affiliated with the Outlaws and an officer's apparent association 17 with the Outlaws organization itself: 18 19 20 21 22 23 24 25 discharged. mere Murphy distinguished association with a between friend who a correctional happened to be If they're riding with the Outlaws with all patch members, that may be an issue. If he's friends with Mr. Piscottano in an independent capacity, I can't stop that. But once it crosses the line where it appears to be attached to the Outlaws as an organization, a criminal enterprise, it will probably be looked at. (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. 29 plaintiffs' intimate association claim substantially for the reasons 30 stated by the district court. -58- We affirm the dismissal of 1 IV. 2 Finally, THE VAGUENESS CHALLENGES 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 7 impermissibly 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 negatively The on vague. Due the Given Process Department that Clause the of due the of Correction," process doctrine Fourteenth is of Amendment 13 provides that "[n]o State shall . . . deprive any person of life, 14 liberty, or property, without due process of law." 15 amend. XIV, § 1. 16 enactment is void for vagueness if its prohibitions are not clearly 17 defined." 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." 23 U.S. Const. "It is a basic principle of due process that an Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Id. "Condemned to the use of words," however, "we can never 24 expect mathematical certainty from our language." 25 Thus, a regulation need not achieve "meticulous specificity," which 26 would come at the cost of "flexibility and reasonable breadth," id. -59- Id. at 110. 1 (internal 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). 6 regulation is unconstitutionally vague is determined by whether it 7 afforded fair notice to the plaintiff to whom it was applied. 8 determining the sufficiency of the notice," a regulation "must of 9 necessity be examined in the light of the conduct with which a quotation marks omitted); and regulations "are not Rather, the question of whether a statute or "In 10 defendant is charged." 11 conduct that is clearly proscribed cannot complain of the vagueness 12 of the law as applied to the conduct of others." 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 16 successfully challenge it for vagueness."). to 17 whose Further, Id. at 33. conduct the a "A plaintiff who engages in some statute Supreme Court clearly has Village of Hoffman applies "expressed may not greater 18 tolerance of enactments with civil rather than criminal penalties 19 because the consequences of imprecision are qualitatively less 20 severe." 21 generalized language may appropriately be used to set out standards 22 of conduct for employees. 23 134, 159 (1974) (plurality opinion). 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, Hoffman, 455 U.S. at 498-99. And it has indicated that See, e.g., Arnett v. Kennedy, 416 U.S. -60- Accordingly, prohibitions 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 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). 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)). to a provision of the -61- Lloyd-La Follette Act that A majority of the Court found The Arnett Court noted: 1 2 3 4 5 6 7 8 9 10 11 12 13 [T]here are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest. [If t]he general class of offense to which . . . [the provisions are] directed is plainly within [their] terms . . . , [they] will not be struck down as vague, even though marginal cases could be put where doubts might arise. 14 Arnett, 416 U.S. at 159 (plurality opinion) (internal quotation 15 marks omitted). 16 17 18 19 20 21 22 23 24 Congress sought to lay down an admittedly general standard, not for the purpose of defining criminal conduct, but in order to give myriad different federal employees performing widely disparate tasks a common standard of job protection. We do not believe that Congress was confined to the choice of enacting a detailed code of employee conduct, or else granting no job protection at all. 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 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 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." 36 160-61 (plurality opinion) (quoting Pickering, 391 U.S. at 568). 37 Citing the "essential fairness of this broad and general removal for in speech as connection well with as other regulation -62- conduct," of the id. speech at of 160 the Arnett, 416 U.S. at 1 standard, and the impracticability of greater specificity," the 2 Arnett Court concluded that 3 4 5 6 7 8 9 10 [b]ecause of the infinite variety of factual situations in which public statements by Government employees might reasonably justify dismissal for "cause," we conclude that the Act describes, as explicitly as is required, the employee conduct which is ground for removal. 416 U.S. at 161 (plurality opinion). 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. 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." Insofar 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. 20 the past; all of them stated that they attended Outlaws events even 21 as nonmembers. 22 by Outlaws members. They all denied knowledge of any such activity. 23 (See DOC 2003 Report at 7 (Vincenzo: 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: 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 Two of them admitted to having been members in All of them were questioned about criminal activity criminal activity -63- in "I have no knowledge of any other states but none "I in 1 Connecticut as far as I know."); id. at 11 (Scappini: 2 aware of or seen [sic] any illegal activity by any member of the 3 Outlaws Motorcycle Club.").) 4 about criminal activity by Outlaws members, any reasonable person 5 would be aware that such activity was a matter of concern to DOC. "I am not Plainly, after being questioned by SD 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 10 11 12 13 [o]n August 1, 2003, Commissioner Theresa C. Lantz forwarded a referral to the Director of Security for an official investigation into the allegations that several Correction Officers are members or associates of the Outlaws Motorcycle Club. 14 (DOC 2003 Report at 1.) 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. 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 As described in Parts I.A.1., I.A.2., and Report described law (See id. at 1-6.) 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.) 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. It described SD's interviews with each plaintiff on -64- 1 (See id. at 6, 10.) 2 Outlaws colors subsequent to his resignation. And it described observations of Kight wearing (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." 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." 11 (Id. at 14.) The (Id. at 16-18.) Each plaintiff was furnished with a copy of the DOC 12 Report. 13 hearing and an opportunity to, inter alia, dispute the allegations 14 of the DOC Report. 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. 18 result of the violations outlined in the DOC Report, they could be 19 subject to discipline, up to and including termination.").) And each was notified that he would be given a Loudermill (See, e.g., Complaint ¶ 20 ("On or about At those hearings, Plaintiffs were warned that as a 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 -65- 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. 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 That provision of Directive 2.17 expressly refers to 10 an 11 reflects negatively on the agency that employs him. 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). organization 18 whose Finally, affiliates although engage plaintiffs in argue criminal that activity As the DOC 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 24 (Complaint ¶ 18), those arguments provide no support for their claim 25 that Directive 2.17 is impermissibly vague. 26 DOC had received reports from several law enforcement agencies that 27 the Outlaws national organization and affiliated chapters were States is "entirely false -66- and without basis in fact" It is undisputed that 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)). 7 credited those reports. 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. It is indisputable that DOC (See, e.g., Plaintiffs' Summary Judgment (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, 15 concerned that there might be such activity and concerned about 16 employing correctional officers who were members or associates of 17 the Outlaws. 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 22 Department. 23 B. questioning that sufficed to alert him that DOC was And each plaintiff had explicit notice at least as with the Outlaws would reflect negatively on the 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 -67- 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. 11 and broken nose. 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. 15 a DOC correctional officer, wearing Outlaws colors, in a public 16 altercation 17 negatively on the Department. at Kight was hospitalized with a broken jaw Although he maintained that he had suffered those which shots were fired The involvement of surely could reflect 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." 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. (Tr. 103.) Regardless of whether members of any other Such favors could take the form not only of -68- 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. 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. 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. 13 learned of Kight's close association with the Outlaws, would reflect 14 negatively on DOC. And if a member of a rival gang Similarly, if there were a Plainly such possibilities, especially once DOC had 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 -69- 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. 4 Outlaws colors showed that he was "proud" of the organization. (Tr. 5 103.) 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. His wearing of It surely requires no special intelligence to realize that 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 16 2. The Continued Conduct of Piscottano Piscottano too continued his open association with the 17 Outlaws in the fall and winter of 2003. 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- He sought, however, to 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. 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 In Cox v. prohibition, and the 10 protestors proceeded to hold their demonstration at the expressly 11 approved location. 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). 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 19 Piscottano prior to the conduct that led to his dismissal. See id. at 571 ("after the public officials As discussed below, the advice received by best--as a result of DOC's direct dealings with 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 26 27 28 29 30 Some time in 2001, I spoke to Warden Meyers [sic], then Warden of NCI [the correctional institution to which Sabettini was assigned], concerning my association with the Club. Later in the year I spoke to Major Lajoie about my association with the Club. Both Meyers [sic] and Lajoie informed me that -71- 1 2 3 this association would not pose a problem, as long as I was not involved in any criminal activities. I relayed this information to Gary Piscottano. 4 (Affidavit of Randy Sabettini dated April 23, 2004, ¶ 6.) 5 statement by Sabettini that he had inquired of his supervisors 6 "concerning 7 precisely what information he conveyed to them in seeking their 8 advice. 9 period when he relayed information to Piscottano. [his] association with the Club" is silent The as to Nor does Sabettini in his affidavit identify the time (Piscottano 10 himself could only say that he had received the information from 11 Sabettini prior to September 2003.) 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. However, any information 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 any 21 indicated that they had had conversations with him in mid- or late 22 2002. 23 24 25 26 27 28 29 to conversation with Sabettini in 2001; but both Myers stated: I can't recall if [Sabettini] specifically mentioned the Outlaws, but I recall telling him that if [he] was not involved in any criminal activities I didn't see an issue with him riding motorcycles with club members. I can't recall Officer Sabettini specifically saying that he was a member of any motorcycle club. 30 (Interview Statement of retired Warden Larry Myers dated January 8, 31 2004.) Lajoie described a conversation in which Sabettini -72- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 asked whether or not it was an issue if he was a member of the Outlaws. I told him that I didn't know of any directives that specifically addressed being involved with a club of that nature and as long as he was not committing any crimes or doing anything wrong, I didn't believe it violated any departmental policies. I told him that it didn't look very good in the eyes of perception when an officer was believed to be a member of any motorcycle group of this nature. At some point he stated that he was no longer a member and I told him that he was better off not associating with anyone from that organization. I would occasionally have conversations with Officer Sabettini in passing where he would state that he was still out of the organization. Officer Sabettini never informed me of how long he was in the organization or if he held any position within the club. Officer Sabettini never spoke of specifics concerning the club with 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. 25 example, whether the information Sabettini "relayed" to Piscottano 26 was 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 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. simply whether that the membership relayed in the information It is not clear, for Outlaws instead posed no included problem-- Lajoie's 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 -73- 1 with 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 5 agencies' information as to widespread criminal activity on the part 6 of the Outlaws national organization and affiliated chapters. 7 Report 8 participation in Outlaws events and wearing of Outlaws colors 9 violated Directive 2.17's prohibition against conduct that could respect the also to DOC his 2003 expressly Outlaws-related Report, which concluded activities detailed that was law plainly enforcement Piscottano's That continued 10 reflect negatively on DOC. 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 14 (Complaint 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. subject to ¶ Finally, at his Loudermill hearing, discipline, 20). Given up to these and DOC including proceedings termination" beginning in 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 -74- 1 December 2003. 2 lacked notice after September 2003 that such conduct could reflect 3 negatively on DOC, in violation of Directive 2.17. 4 dismissal of his vagueness claim was appropriate. 5 3. No rational factfinder could find that Piscottano The summary 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. 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. 12 DOC merely ordered that he receive counseling. 13 Vincenzo was dismissed in In connection with his Hence, in April 2004, 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. 21 with members of the Outlaws until the end of the event. 22 with members of the Outlaws after the event ended, having donned an 23 Outlaws Support shirt. 24 He remained there and drank He departed (See Part I.C.6. above.) Vincenzo's contention that his conduct did not constitute 25 "attend[ance]" 26 incontrovertible that he received fair notice that his conduct would at the July 11 event -75- is frivolous, and it is 1 2 violate Directive 2.17. His vagueness claim was properly dismissed. 4. The Vagueness Claim of Scappini 3 Finally, we find no error in the dismissal of the different reason. 4 vagueness challenge 5 Scappini, unlike 6 participate 7 interviewed by SD in September 2003 or after receiving the DOC 8 Report describing the criminal activities of the OMC. 9 SD 2004 Report on Scappini stated that SD had no information that in by the any Scappini, other but for plaintiffs, Outlaws-related a apparently activities did after not being Indeed, the 10 Scappini 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. had 15 attended any Outlaws event after May 24, 2003. However, unlike the other plaintiffs, Scappini was not 16 dismissed. 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 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. 25 dismissed. He for was which placed he was on administrative criticized in the leave DOC during 2003 the Report. His due process challenge to Directive 2.17 was properly -76- 1 2 CONCLUSION We have considered all of plaintiffs' arguments on this 3 appeal and have found them to be without merit. 4 dismissing the Complaint is affirmed. -77- The judgment
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