Lawyer Has No First Amendment Right to Wear Hat in Court, Federal Judge Decides

Mark Fass

New York Law Journal

An attorney does not have a constitutional right to wear jeans and a hat -- specifically, an Operation Desert Storm baseball cap -- while appearing in state court, a Brooklyn, N.Y., federal judge has ruled.

Eastern District of New York Judge Nicholas G. Garaufis ruled that the court's dress code merely enforced "commonly shared mores of courtroom civility," and did not encroach upon the First and 14th amendments.

"When 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," Garaufis concluded in Bank v. Katz, 08-CV-1033. "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."

In the underlying action, Todd C. Bank, a Queens-based solo practitioner, appeared pro se in an ongoing dispute with his landlord before Queens Civil Court Judge Anne Katz.

At the onset of oral arguments in March 2008, Bank requested that Katz allow him to "exercise his rights under the First Amendment of the U.S. Constitution by wearing a baseball hat" that read "Operation Desert Storm."

Katz said no.

Later that same day, the Queens Civil Court's senior clerk instructed Bank to remove his hat while in the courtroom.

The following day, Bank filed the present action against Katz and the clerk, Jude Albano, seeking prospective declaratory relief under 42 U.S.C. §1983.

"Plaintiff expects that ... he will make additional appearances in [Queens Civil Court] during which time he would, if permitted, wear a hat," Bank wrote in his complaint. "Plaintiff is entitled to a judgment ... declaring that any future refusal, by Defendants, to permit Plaintiff to wear a hat would violate the First and Fourteenth Amendments of the United States Constitution."

In a six-page decision Thursday, Garaufis sided with Katz and Albano, and dismissed the case.

"In addition to being reasonable, restrictions on attire generally do not discriminate against any viewpoint," Garaufis concluded. "[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."

Bank said Thursday that he wore the hat in order to express himself and to challenge the ban.

"The respect a court gets should come from the court itself," Bank said. "As long as my conduct does not hinder the court's ability to adjudicate disputes, I think it should be allowed."

Bank added that he intended to appeal.

"I've had cases that I've lost in my career and I knew that I should have lost," Bank said, "but this is not one of them."

Bank's practice, which specializes in fighting "junk faxes," is located in Kew Gardens. He is a member of the Federalist Society and, in 2002, ran unsuccessfully for the state Assembly on the Republican and Conservative lines.

Bank suffered another pro se defeat in the Eastern District earlier this year when Judge Jack B. Weinstein dismissed his action over, among other things, a $35 fee his landlord assessed for a bounced check.

Amy L. Abramowitz and Charles Fernando Sanders of the New York state attorney general's office represented Katz and Albano.