First Circuit Upholds Discipline Against Firefighter Who Refused to be Photographed

The 1st Circuit Court of Appeals has ruled that a Massachusetts fire chief did not discriminate against a firefighter by requiring him to pose in his Class A uniform for an identification photo. Thomas Swartz filed suit claiming he was wrongfully disciplined by the Bourne Fire Department in 2016, in violation of his religious rights.

Swartz claimed that his religion prohibited him posing for photos for promotional purposes, and that he rightfully refused Fire Chief Norman Sylvester’s order. The photos in question would have been used for accountability tags, fire department identification, a wall at headquarters with everyone’s photo, and potentially released to the media when a member is promoted. In December, 2018, he sued Chief Sylvester for violating his First Amendment rights.

The district court granted summary judgment to Chief Sylvester concluding he was entitled to qualified immunity. The Court of Appeals affirmed, holding as follows (internal citations and quotation marks removed to facilitate reading):

  • The parties do not dispute, and we agree, that Sylvester, as Fire Chief of the BFD, could be held liable under Section 1983 if he did indeed violate Swartz’s constitutional rights.
  • The right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).
  • Therefore, we decline to find a constitutional violation when a neutral and generally applicable law or policy incidentally burdens free exercise rights if it is rationally related to a legitimate governmental interest.
  • We utilize heightened scrutiny when a law or policy is not neutral or generally applicable, sustaining it only if it is narrowly tailored to achieve a compelling governmental interest.
  • To qualify as neutral, a policy must not target religious beliefs or practices because of their religious nature.
  • First, we cannot agree that Sylvester’s conduct was not neutral. Clearly, it was facially neutral.
  • Beyond pure speculation, Swartz offers no evidence that would allow a reasonable juror to conclude that the requirement to have Class A photographs taken became mandatory because of his religiously motivated objection to having his photograph taken, rather than simply because he objected.
  • Accordingly, finding that Sylvester’s conduct was both neutral and generally applicable, we do not apply heightened scrutiny, but will sustain the policy against constitutional challenge if it is rationally related to a legitimate governmental interest.
  • Sylvester’s directive passes rational basis review.
  • As both parties agree that one purpose of the photographs was for a public bulletin board and for media requests as needed, the photograph policy is rationally related to the legitimate governmental interest of publicizing the BFD and promoting the integrity of government institutions.
  • Upon de novo review, we agree with the district court’s conclusion that Sylvester did not violate Swartz’s constitutional rights.
  • We accordingly affirm the district court’s decision that Sylvester was entitled to qualified immunity as to the federal claim against him.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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