U.S.C. § 1983 action after being disciplined and terminated for associating with an Outlaw
Motorcycle Club (OMC) in violation of DOC policy directives. The dismissal was affirmed.
DOC guards Gary Piscottano, Mark Vincenzo, Walter Scappini II, and James Knight, long term DOC employees, attended regular OMC functions and two admitted membership status. National Drug Intelligence Center reports claimed various drug, murder and other criminal activities associated with the OMC including fatal actions over their rivalry with the Hells Angels, presenting a public safety concern. A 2003 drive-by shooting spurred an investigation into the guards' OMC involvement. The guards alleged DOC approval barring their committing criminal acts and denied knowledge of any OMC criminal activity. Three of them were terminated after disciplinary actions and warnings to cease their associations were ignored.
They brought suit claiming First Amendment association and freedom of speech violations, as well as a vagueness challenge to Directive 2.17, which prohibited the association.
The DOC argued their First amendment claims did not constitute speech "as a mailer of public concern" and were hence inapplicable; safety and security concerns outweighed their association interests; and that DOC Directive 2.17 was not vague because it objectively provided standards and fair notice of proscribed conduct. The DOC's summary judgment dismissal was granted.
On appeal, the United States Court of Appeals for the Second Circuit held that belief of criminal activity by a law enforcement agency sufficiently imposes "a mailer of public concern" and in denying that the OMC “have engaged in criminal activity, plaintiffs have aligned themselves with the Outlaws and against local, state, and national law enforcement agencies.” The Court further held that the association, in which the guards discipline was not imposed for a basis of close personal friendship, presented safety and security concerns to the DOC's effective operation and a conflict of interest. Finally, the court held that a plaintiff conducting clearly proscribed conduct "cannot complain of vagueness of the law."
See: Piscottano v. Murphy, 511 F.3d 247 (2nd Cir. Dec. 21, 2007).
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Related legal case
Piscottano v. Murphy
|Cite||511 F.3d 247 (2nd Cir. Dec. 21, 2007)|
|Level||Court of Appeals|