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Former New York Mayor Rudolph Giuliani and the heads of the police and fire department violated the First Amendment when they fired three employees for participating in a racist float during a 1998 Labor Day parade in Broad Channel, Queens, a federal judge ruled Tuesday. Judge John E. Sprizzo said Police Officer Joseph Locurto and firefighters Robert Steiner and Jonathan Walters were punished “in retaliation for engaging in protected speech” after they were fired for being part of the “Black to the Future: Broad Channel 2098″ float, an alleged parody of African-American integration into the predominantly white community. The float featured performers in black face and Afro wigs. At the end of the parade, Walters hung from the back of the truck, reminiscent of the dragging death of James Byrd Jr. in Jasper, Texas, earlier that year. The termination of the three men after disciplinary hearings prompted them to file suit under 42 U.S.C. � 1983. In the immediate aftermath of the parade, Giuliani responded by making several critical public comments. At one point, he said, “They’re technically suspended, but they’re never getting back into the Police Department or the Fire Department unless the Supreme Court of the United States ordered us to take them back.” In a trial held before Sprizzo in January, Giuliani denied from the witness stand that he directed then-Fire Commissioner Thomas Van Essen and then-Police Commissioner Howard Safir to fire the men, or that the decision to fire them was made well before the disciplinary hearings. And the Corporation Counsel’s office defended the firings as a legitimate response to concerns over the disruption of mission and morale at the police and fire departments. But lawyers for the three men attacked Giuliani’s justification for the firings, arguing that he acted forcefully because he was being severely criticized for denying a permit for the Million Youth March in Harlem and for the actions of the police, who allegedly used excessive force to break up the Sept. 5, 1998, rally. Sprizzo, in a 54-page opinion, first found that the First Amendment claims were not barred by the doctrine of collateral estoppel based on the findings and determinations of law made at the disciplinary hearings. The question of whether unreviewed administrative determinations bar similar claims in a subsequent federal action has yet to be decided by the 2nd U.S. Circuit Court of Appeals, Sprizzo said. But the judge found that he did not need to address that question because the men had not received a “full and fair opportunity” to litigate the issue. Sprizzo then found that the participation in the parade “constituted speech on a matter of public concern” because the float had two aims: “to comment on the future racial integration of Broad Channel” and to win the funniest float prize — “a prize the group had won in the past with other ethnicity-parodying floats.” The judge concluded that “the long, continuing debate over the desirability of community racial integration in this country permits no doubt that the topic is a matter of important political and social concern to the community, regardless of which side of the debate is being represented.” And he rejected the claims that the fire and police departments made about the potential harm to their effectiveness should the three men suffer no consequence after participating in the racist display. He also found, “as a matter of fact,” that Giuliani made the decision to terminate the men well before their hearings. “Even if plaintiffs’ terminations arose out of a genuine concern for potential disruption, the Court finds defendants’ concern was unreasonable and, in any event, insufficient, as a matter of law, to outweigh plaintiffs’ constitutionally protected speech rights,” he said. On the issue of retaliation, Sprizzo said the 2nd Circuit has recognized that public employees have “reduced free speech rights” in some situations, but those decisions have all dealt with “speech that either took place in the workplace or concerned a subject germane to workplace policy or functioning.” Finding that the city’s stated fear of disruption was a pretext for punishing the three men, the judge said a vaguely stated concern about community reaction to the parade float is not enough to justify a restriction on their right to free expression. “Furthermore, allowing speculative or conclusory statements regarding potential community reaction to constitute a legally sufficient government interest is, in essence, allowing a ‘heckler’s veto’ to quash unpopular speech, a notion long rejected by the Supreme Court,” he said. A hearing will be scheduled on remedies in the case. The men are seeking reinstatement, back pay and money damages. Christopher Dunn and Arthur Eisenberg of the New York City Civil Liberties Foundation represented Locurto. Norman Siegel, of counsel for Sullivan Papain Block McGrath & Cannavo, represented Walters. Michael N. Block and Robert Didio represented Steiner. Assistant Corporation Counsel Jonathan Pines represented New York City.

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