Attorney Todd C. Bank really liked his Operation Desert Storm hat. Almost as much as Eastern District of New York Judge Nicholas G. Garaufis (left) disliked it. Bank, a sole practitioner in Queens, lost his constitutional claim that he had a right to wear jeans and a hat of his choice in court. Garaufis ruled that any desire to accessorize would occur outside of the Constitution and his court (or any other court for that matter).
Garaufis upheld the dress code as part of the “commonly shared mores of courtroom civility,” and did not encroach upon rights protected under the First or 14th amendments in Bank v. Katz, 08-CV-1033.
Bank objected to the rule when he appeared pro se in an ongoing dispute with his landlord before Queens Civil Court Judge Anne Katz. During oral arguments in March 2008, Bank requested that he be allowed to “exercise his rights under the First Amendment of the U.S. Constitution by wearing a baseball hat” that read “Operation Desert Storm.” When she said no and the clerk instructed him to remove the cap, he sued in federal court for a declaratory judgment in a challenge naming Katz and the clerk, Jude Albano under 18 U.S.C. 1983.
Garaufis ruled that “[w]hen he is not in court, Plaintiff is free to express the ideas he wishes to express, and to wear the attire he chooses to wear. When he is appearing as a litigant in civil court, however, he should expect that his choice of expressive attire will be limited in accordance with reasonable standards of courtroom decorum.”
Furthermore, the judge held that “in addition to being reasonable, restrictions on attire generally do not discriminate against any viewpoint . . . [t]here is no allegation that any restriction on Plaintiff’s attire was imposed based upon Plaintiff’s viewpoint. [T]he Complaint does not allege that the restriction on wearing [the hat] was based upon its message or viewpoint. Plaintiff does not allege, for example, that a Queens judge prohibited only Yankees hats from her courtroom, or that hats with pro-war messages were permitted while anti-war hats were not.” Well, sure, no one wants Yankee hats in a court of law. The Yankees are the antithesis of the concept of justice and equity. Now, a Chicago Cubs hat is a different matter . . .
Bank intends to appeal and insists “I’ve had cases that I’ve lost in my career and I knew that I should have lost, but this is not one of them.” Bank is a conservative who ran for the state legislature as a Republican and is a member of the Federalist society. He says that he specializes in litigating “junk faxes.” However, earlier litigation included an equally unsuccessful challenge to a $35 fee that his landlord assessed for a bounced check (as well as other alleged violations). That challenge was dismissed by Judge Jack B. Weinstein.
Lawyers have previously litigated the issue of dress codes, including a recent objection to an order of a white judge for an African-American lawyer to remove the kente cloth in court. D.C. Superior Court Judge Robert M. Scott told a defense attorney John T. Harvey III that he would have to remove himself or the cloth from the case, here. Likewise, Judge William Sosnay delayed courtroom proceedings for several hours because the prosecutor insisted on wearing an ascot rather than traditional neckwear, here.
While such displays are banned because they can be used to pander to a jury, even jurors are not allowed to wear their clothes of choice as in Whitewater juror Barbara Adams who showed up in a Starfleet Academy uniform, including commbadge, a phaser, and a tricorder. (The phaser was not banned as a weapon, but her outfit was challenged by the court).
The dress codes of courts are a bit impressionistic and clearly majoritarian. For example, a female lawyer (as shown in the ascot case) is generally given more leeway than males, who are expected to wear a tie (and not an open shirt) as well as a jacket in court. On the other hand, King County Superior Court Judge Jeanette Burrage was heavily criticized when she told Public defender Cindy Arends and Deputy Prosecutor Page Ulrey to both show up in skirts or not at all in court, here.
Bank insists that “[t]he respect a court gets should come from the court itself. As long as my conduct does not hinder the court’s ability to adjudicate disputes, I think it should be allowed.”
What do you think?
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