The New York Police Department bars officers from sporting beards except to accommodate medical or religious requests – and even then the beard can be no longer than one millimeter in length.
A Chasidic Jew who was fired from the Police Academy in June 2012 because he refused to trim his beard is set to challenge that rule in a trial that begins next month. To avoid it, the dismissed cadet, Fishel Litzman, told Manhattan Federal Judge Harold Baer Jr., that the facts are undisputed and asked that he rule that the department violated his civil rights.
In court papers and in an oral argument, the city argued that although the department does make accommodations for medical and religious reasons, it could not grant Litzman one because “his religious belief that he can never shave, trim or cut his beard” means he cannot comply with the one millimeter rule.
The rule was put in place, the city said, because the department’s counterterrorism and emergency preparedness strategy requires that officers “be willing to shave their beards completely, at least on occasion, for the purpose of safely using respirators that rely on a seal against the user’s face for effectiveness.”
It added that Litzman’s “request to grow a full beard that can never be shaved is not a reasonable accommodation, and would impose undue hardship upon the NYPD.”
But in his reply, Litzman’s lawyer, Nathan Lewin, argued that his client did not say he would never shave his beard in an emergency, just not for training purposes.
“The Orthodox Jewish observance followed by adherents to the Chabad movement that bars any trimming of a beard is qualified, under Jewish religious law, by the principle of `pikuach nefesh’ – saving a life,” Lewin wrote. “The plaintiff [Litzman] has never said that he would refuse to shave his beard if it became necessary, in a life-threatening situation, for him to use a … respirator that cannot be worn with facial hair.”
Lewin submitted with his court papers a sworn statement from Litzman declaring his readiness to shave his beard in such an emergency. In addition, he submitted supporting statements about the religious principle of saving a life from two rabbis whose letters were submitted to the department when Litzman first requested the religious accommodation.
The city claimed Litzman, who Lewin said was at the top of his class of more than 800, was terminated because of his failure to trim his beard during training so he could be certified in the use of the MSA Millennium respirator used by the department. It noted that Litzman’s classmates who were permitted to grow and maintain a beard of up to one millimeter in length for religious or medical reasons still had to shave their beards completely to be certified in the use of the respirator.
“It is essential to NYPD’s mission that each and every police officer who graduates from the police academy has all the knowledge and training necessary to perform any duty assigned, and can perform all the essential functions of the job, which includes donning the MSA Millennium respirator, should the need arise,” it said.
It noted that the department must assume when deploying officers in an emergency that they are all equally trained “because it will not have the luxury of time to ascertain whether any of the officers selected for deployment may have been exempted from” the certification requirement. Were that not the case, the “flexibility of the overall police force to respond to emergency situations would be compromised.”
The city added that it explored alternatives to the MSA Millennium respirator but was unable to identify any that was both “functionally equivalent” and could be worn with facial hair.
Lewin insisted that his client could learn to become proficient in the use of the respirator without having the need to be certified in its use.
“Actual ability to use the MSA Millennium respirator, not bare certification of the ability to don it, is all that the NYPD needs to fully fulfill its mission,” he said.
Requiring Litzman’s classmates to shave their beards – even those granted religious accommodations – Lewin said, “means that the purported NYPD `accommodation’ is not any accommodation at all for someone who, like the plaintiff, has a religious observance that bars even a one-time removal for all facial hair.”
“The NYPD `accommodation’ essentially says to the religious observer, `We will force you to sin one time, and then we won’t require you to sin repeatedly.’ It is, in fact, no authentic religious accommodation at all.”
And Lewin maintained that Litzman is no different than other officers who have facial hair.
“Just as they will have to take a clean shave if there is an emergency that requires them to use the MSA Millennium respirator, the plaintiff will do so in case of a life-threatening emergency.”
In addition to its argument about the respirator, the city said Litzman’s 1-inch long beard is also a danger to himself. It said the handful of uniformed officers whom Litzman said have beards in excess of one millimeter in length do not wear them “significantly longer” than that, and certainly not “close to the length of Litzman’s approximately one-inch long beard. …
“Common sense dictates that the Police Academy’s Tractical Training Unit instructors and martial arts experts are correct in stating that a beard that is long enough to be grabbed by an assailant is an obvious tactical disadvantage and safety concern for a police officer.”
The city said the department’s beard exemptions for medical and religious reasons are “identical,” brushing aside Lewin’s contention that those with a medical condition are certified in the use of the respirator without having to completely shave.
“Counterterrorism and emergency preparedness are compelling governmental interests dictating that, under these circumstances, NYPD’s grooming guidelines should survive even a strict scrutiny analysis. …Exempting plaintiff and other officers would compromise NYPD’s ultimate goal of having 100 percent of its uniformed officers … certified for use of the respirators, which, in turn, would undermine NYPD’s overall counterterrorism and emergency preparedness strategy.”
But Lewin insisted that Litzman “is capable of donning a MSA Millennium respirator if he were to remove all his facial hair – a step he is prepared to take, if necessary, in case of a true life-threatening emergency such as a chemical or nuclear attack. The NYPD’s goal of achieving 100 percent qualification of such a respirator in case its use is needed will be satisfied if the plaintiff’s qualifications are recognized and he is not arbitrarily disqualified. And like all other uniformed officers who now have facial hair, the plaintiff is ready to meet the standard of shaving his beard completely if the world situation creates a life-threatening emergency.”
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