Regulating matters of appearance: tattoos and other body art

FBI Law Enforcement Bulletin,The, Feb, 2007 by Lisa A. Baker

The often-used phrase "the more things change, the more things stay the same" aptly describes an issue that has faced law enforcement managers for generations--what may be done to regulate the appearance of police officers in their command. In 1976, the U.S. Supreme Court addressed the issue of policies concerning hair length for police officers, ruling that such policies did not violate constitutional rights of officers. (1) Today, not only are hair length and style an issue but individual expression in other forms, such as tattoos and body piercings, can present similar challenges. This article explores the legal issues related to regulating the appearance of police officers by analyzing the 30-year-old case, Kelley v. Johnson (2) and its continued relevance for law enforcement managers in light of the more recent phenomena of "body art."

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In Kelley v. Johnson, (3) the Supreme Court upheld the constitutionality of regulations describing the length and style of hair appropriate for police officers. In so doing, the Supreme Court declared that police administrators should be afforded great deference in enacting regulations governing the appearance and professionalism of officers under their command. In assessing the constitutionality of such regulations, the Supreme Court held that such regulations should be examined to determine if a "rational connection" between a legitimate government objective and the regulation exists. (4) The Court concluded that the hair length and style regulation at issue accomplished at least two governmental objectives. First, the regulation enhanced recognizability of officers to the public, and second, it fostered a sense of esprit de corps and solidarity within the officer population, thus improving the overall effectiveness of the department. (5)

As stated by the Supreme Court in Kelley v. Johnson:

  The overwhelming majority of state and local police of the present day
  are uniformed. This fact itself testifies to the recognition by those
  who direct those operations, and by the people of the States and
  localities who directly or indirectly choose such persons, that
  similarity of appearance in police officers is desirable. The choice
  may be based on a desire to make police officers readily recognizable
  to the members of the public, or a desire for the esprit de corps
  which such similarity is felt to inculcate within the police force
  itself. Either one is a sufficiently rational justification for
  (grooming and appearance) regulations. (6)

This deferential standard is exemplified in Rathert v. Village of Peotone. (7) In this case, the Seventh Circuit Court of Appeals upheld a department's decision to prohibit male officers from wearing ear studs on and off duty. In Rathert, two male officers brought a lawsuit under Title 42, Section 1983, U.S. Code ([section]1983), alleging a violation of their constitutional rights to liberty, due process, and freedom of association after they were disciplined for refusing to remove their ear studs at the direction of the chief. While the department did not have a policy specifically addressing ear jewelry, the chief claimed that the ear studs violated departmental standards requiring the officers to remain neat and well-groomed. According to the Peotone police manual, officers were required to respond when called upon whether or not they were on active duty and be available 24 hours a day. (8)

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In rejecting the officers' contentions that their due process rights were violated, the Seventh Circuit Court of Appeals ruled that while the "choice of appearance is an element of liberty," (9) the chief articulated a sufficient rational basis for prohibiting the wearing of ear studs by male officers on and off duty. Referring to the Supreme Court's decision in Kelley, the Seventh Circuit Court of Appeals noted that either of the justifications articulated by the Peotone chief, recognizability as police officers or promoting uniformity and esprit de corps, supported the conclusion that the prohibition on ear studs furthered a legitimate government interest. (10)

The circuit court similarly rejected the officers' contentions that their First Amendment rights of association and expression were violated. The officers failed to identify any political, religious, cultural, or other reason for wearing their ear studs. As stated by the court:

  Plaintiffs' justification for wearing the ear studs is merely that
  they "want to" and "for fashion." Those reasons would be enough for
  members of the public to wear ear studs, but not for police officers
  who work for the public. (11)

Of course, the unique factual context of this case is worth noting. The Village of Peotone at the time was a small community with a population of less than 5,000; the village employed a small police force and, as testified to by the chief, members of the community would recognize police officers whether they were on or off duty. (12) Nonetheless, it is illustrative of the great deference afforded law enforcement managers in addressing issues relating to appearance and professionalism.