On June 8, 2015, without any prior notice or discussion with police officers, the Chicago Police Department issued an order that required all officers on duty or otherwise “representing” the Department to cover all of their tattoos, either with clothing or “cover-up tape.” In response, three police officers that are military veterans with tattoos relating to their military service and their religion filed a lawsuit in the U.S. District Court for the Northern District of Illinois. The officers sought a declaratory judgment that the tattoo order violates their First Amendment right to free speech, which in the context of a public employee means the right to communicate to the public their views on matters of public interest or concern. The District Court dismissed the officers’ lawsuit, finding that tattoos are a “personal expression” and not a matter of public concern protected by the First Amendment.
While the officers were appealing the District Court’s judgment to the Seventh Circuit Court of Appeals, their union filed a grievance against the City of Chicago claiming that the tattoo order violated the collective bargaining agreement because it affected the officers’ working conditions and had been issued without any bargaining. The grievance was referred to an arbitrator, who agreed with the union and held that the absence of any bargaining over the tattoo order required the City to revoke the order and compensate officers for any costs incurred in complying with it. The City chose not to appeal and agreed to comply with the arbitrator’s ruling.
Turning its attention back to the Court of Appeals, the City then filed a motion to dismiss the officer’s appeal on the grounds that the matter had become moot. The City argued that, because it had agreed to revoke the tattoo order and pay all expenses related to compliance, the officers had obtained all the relief they sought. The Court of Appeals agreed that the matter had become moot, but the Court also recognized that the District Court’s ruling that tattoos are a “personal expression” not protected by the First Amendment would remain binding if the appeal was simply dismissed, thereby depriving the officers of the opportunity to appeal while also leaving a binding judgment against them. Therefore, instead of simply dismissing the appeal, the Court of Appeals remanded the case back to the District Court on May 10, 2017, with instructions to the District Court to vacate its judgment.
Although this case became moot before the Court of Appeals could take a position on the validity of the tattoo order, the opinion issued by the Court does give the impression that it would have required the tattoo order to be more narrowly-tailored. For example, in analyzing the substance of the tattoo order, the Court of Appeals pointed out how it is unclear when an officer is “representing” the Department and that the order “was not limited to offensive tattoos, such as those conveying a racist or sexist message; all visible tattoos were outlawed.” Any local government units considering similar policies may use this opinion as guidance in considering the scope and practical application of those policies. A copy of that opinion is available through the following link: Medici v. City of Chicago, Case No. 15-3610