Pa. tattoo-removal policy challenge rejected

Tuesday, October 23, 2012

A Pennsylvania man who was denied employment as a liquor-enforcement officer with the Pennsylvania State Police because he refused to remove one of his tattoos failed to convince a federal appeals court that he suffered unlawful retaliation for criticizing the removal policy.

When Ronald Scavone applied for the liquor-enforcement position in 2008, he learned that the state police had enacted a policy in 2007 requiring all visible tattoos to be reviewed by the Tattoo and Replica Review Committee.

The state police contends that removal of some tattoos is necessary to support the agency’s image and reputation of the agency. It also points out that liquor officers often perform undercover work and visible tattoos could compromise an officer’s anonymity.

Scavone passed the written and oral tests necessary to qualify for the position. A June 2008 letter informed him that he had passed the tests but would need to remove one of his tattoos, that of a jester.

Initially Scavone said he would remove the tattoo but after talking with two plastic surgeons and a lawyer he changed his mind. He then filed a federal lawsuit, alleging that his First Amendment and equal-protection rights had been violated. He said the state police violated his free-speech rights by selectively enforcing the tattoo policy against him because he had hired a lawyer and spoken out against the policy.

In December 2011, U.S. District Judge for the Middle District of Pennsylvania A. Richard Caputo rejected Scavone’s claims.

“The Court fails to see how the PSP’s decision to deny Mr. Scavone employment for questioning the tattoo policy could be conceptualized as retaliatory when the decision was made before he questioned it,” the judge noted.

Scavone appealed to the 3rd U.S. Circuit Court of Appeals, which affirmed the lower court and also ruled against him in its Oct. 15 decision in Scavone v. Pennsylvania State Police.

The appeals court agreed with the lower court that Scavone’s retaliation claim must fail because of the timing problem.

“Since he did not engage in protected speech until after PSP’s enforcement of the policy was made, the decision cannot be conceptualized as retaliatory,” the appeals court concluded.

In the appeals court, Scavone also challenged the tattoo policy itself as being too vague and broad. However, the 3rd Circuit refused to address this claim, saying that Scavone had failed to address it in his complaint.

“Since Appellant does not allege in his Complaint that the tattoo policy itself violates the First Amendment, he cannot press this argument here for the first time,” the appeals court reasoned.

The appeals court also rejected Scavone’s equal-protection claims.

Scavone’s attorney, Cynthia L. Pollick, said, “We’ve got no comment other than we are disappointed that we were not able to get the case revived.  My client has not decided whether to appeal. “

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