September 10, 2008 6:49 PM

Fox Rothschild on Philly Cop's Muslim Discrimination Suit

Posted by Zach Lowe

Fox Rothschild partner Jeffrey Pollock knows he's not exactly abiding by the usual rules for appellate argument as he seeks to reverse a district court ruling that let the City of Philadelphia ban a Muslim female police officer from wearing a head scarf at work.

"I'm violating almost every rule of civil procedure," Pollock says with a laugh, a day after arguing the case before a three-judge panel of the U.S. Court of Appeals for the Third Circuit.

That's because prior counsel for Officer Kimberlie Webb, 46, never raised First Amendment issues or questions of possible gender discrimination when she first filed suit in 2006. (Muslim men, after all, don't wear head scarves).

Instead, Webb's lawyers, Lance James and Lorenzo Cobb, argued her case on religious discrimination grounds under the Civil Rights Act of 1964. James and Cobb also failed to submit deposition testimony from a fellow officer who said he had seen other officers smudge their foreheads with ash on Ash Wednesday, wear crucifixes and indicate their religious views in other ways while on the job.

That, Pollock says, made it easy for the Cozen O'Connor attorneys who represented the city in its victory win at the district court level last year. The firm simply argued that the city's police department had an interest in uniformity and religious neutrality.

Neither James nor Cobb could be reached for comment.

After she lost in court, Webb wrote about her case on Islam-themed Web sites. Pollock's wife, Seval Yildirim, a professor at Whittier Law School, saw Webb's story online and asked her husband to handle the appeal pro bono before the U.S. Court of Appeals for the Third Circuit, Pollock says.

"A chance to argue in front of the Third Circuit?" Pollock says he asked himself. "I'm game." Better yet, his wife would serve as co-counsel.

But he knew he needed new ammo if he was going to win a reversal. Pollock and attorneys from the American Civil Liberties Union drafted Dechert partner Fred Magaziner and associate John Ghose to write an amicus brief on police departments around the world--including other jurisdictions in the U.S.--that allow officers to wear head scarves and yarmulkes and accomodate religious beliefs in other ways.

In his own brief, Pollock introduced First Amendment discrimination claims.

"We went completely off the menu," he says.

The judges weren't thrilled. Judge Theodore McKee said the new issues "can't be raised here," according  the Philadelphia Daily News. Judge D. Brooks Smith appeared to feel the same way, Pollock says. The city's own attorney, Eleanor Ewing, told the judges Pollock simply wanted a "do-over."

But Pollock believes he has the right to raise constitutional issues at any time, even if prior counsel overlooked them. He says the Cozen team itself opened the door to such a claim at the district level when it cited U.S. Supreme Court cases--including Goldman v. Weinberger, in which the Court ruled that the U.S. military could bar a service member from wearing a yarmulke.

Congress eventually legislated otherwise; the military now allows for several dress-related religious accommodations. That makes it fair game as evidence now, Pollock and his Dechert allies argued.

It remains to be seen how the Third Circuit , which is expected to rule soon, will take Pollock's departure from the usual appellate etiquette.

In the meantime, he takes heart from one fan who came to support his side yesterday: a member of the Shalom Center of Philadelphia who showed up wearing a rainbow-colored yarmulke.

"I could have kissed him," Pollock says. 

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