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Karins v. City of Atlantic City2/18/1998
District Court of Delaware, in Aiello v. City of Wilmington, 426 F.Supp. 1272 (D. Del. 1976), applied the Arnett Court's rationale to two fire department regulations that were analogous to those at issue in this case. The pertinent provisions there provided that every member of the fire department was ordered:
To refrain from conduct unbecoming a fireman and a
gentleman whether on or off duty. * * * Be governed by the customary rules of good behavior observed by law-abiding and self-respecting citizens. Regardless of the time or place, whether in uniform or not, members shall conduct themselves in a manner that will not bring discredit to themselves or to the Department.
[Id. at 1276.]
The court concluded that although the regulations "may not be models of precision, belong to a genre not unknown in the realm of public employment, particularly with reference to the uniformed services." Id. at 1292-93. The court rejected the vagueness argument, finding that the fireman's conduct of becoming intoxicated and breaking into a retail establishment while off-duty fell "within the narrow category of acts so egregious that, despite any protestations to the contrary, he could have had no doubt that they were proscribed." Id. at 1293. Similarly, the court rejected the overbreadth challenge because "facial invalidation by application of the overbreadth doctrine is inappropriate if the provision in question applies to a 'substantial number of situations to which it might be validly applied.'" Id. at 1294 (quoting Parker v. Levy, 417 U.S. 733, 760, 94 S. Ct. 2547, 2563, 41 L. Ed. 2d 439, 460 (1974)).
The same reasoning applies to the present case. The A.C.F.D. regulations contain specifically enumerated offenses as well as catch all provisions. It would be impossible for the A.C.F.D. to predict every instance of proscribed conduct. Constitutionally protected conduct-related speech is impliedly excluded from the regulations. Furthermore, Karins knew that the use of racial slurs was prohibited because he had been disciplined less than a year earlier for making such remarks. Indeed, Operational Procedure #105 was promulgated because of his prior conduct, and he received a copy of it less than two months before the present incident. Four of the five charges against him were based on the use of the racial slur. The only exception was the charge for engaging in conduct that either violated a law or that could have led to his arrest. Hence, we reject the vagueness argument.
-B-
Whereas the vagueness doctrine "involves procedural due process considerations of fair notice and adequate warning," the overbreadth doctrine "involves substantive due process considerations concerning excessive governmental intrusion into protected areas." Petition of Soto, 236 N.J. Super. 303, 324 (App. Div.), certif. denied, 121 N.J. 608 (1989), cert. denied, 496 U.S. 937, 110 S. Ct. 3216, 110 L. Ed. 2d 664 (1990). "The standard is not whether the law's meaning is sufficiently clear, but whether the reach of the law extends too far in fulfilling the state's interest." Ibid.
Generally, courts have allowed the government more leeway in regulating conduct-related speech rather than prohibiting speech itself. See Arnett, supra, 416 U.S. at 162, 94 S. Ct. at 1648, 40 L. Ed. 2d at 38; Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 2918, 37 L. Ed. 2d 830, 842 (1973); Janusaitis v. Middlebury Volunteer Fire Dep't, 607 F.2d 17 (2d Cir. 1979). In Janusaitis the Second Circuit held that a volunteer fire department's bylaw prohibiting "unbecoming conduct detrimental to the welfare or good name of the Department" was not unconstitutionally overbroad. Id. at 2
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