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April 7, 2009 3:53 PM

Can Female Muslim Police Officers Wear Head Scarves? Not in Philly.

Posted by Zach Lowe

Jeffrey Pollock of Fox Rothschild knew he was pushing the boundaries of appellate practice when he tried to introduce new constitutional arguments in the case of a Muslim female police officer challenging a Philadelphia Police Department ban on head scarves. 

"I'm violating almost every rule of civil procedure," Pollock told The Am Law Daily in September, when he argued the case on behalf of the officer, Kimberlie Webb, before the U.S. Court of Appeals for the Third Circuit.

And, indeed, today, that court's three-judge panel unanimously ruled against Webb, in part because the larger constitutional issues Pollock raised on appeal--First Amendment claims and equal protection arguments--were new to the case; Webb's original lawyers on the case, Lance James and Lorenzo Cobb, failed to raise them at lower levels. (Cobb and James have not responded to The Am Law Daily's requests for comment.)

Pollock says he had hoped the appellate judges would find that a person cannot waive certain basic constitutional rights in some cases. But the panel didn't go in that direction. Instead, the judges agreed with the police department's central argument against Webb's more limited employment discrimination claim: that allowing her to wear a head scarf would create an "undue hardship" that justified what would normally be an illegal ban. That hardship? Undermining the department's appearance of neutrality, according to the opinion. (Download Webb Opinion)

That's where an amicus brief from Dechert and the American Civil Liberties Union was supposed to come in. The brief outlined the steps other police departments have taken to accommodate observant officers, including allowing them to wear yarmulkes. A footnote in the opinion indicates the judges didn't consider the brief, since its facts fall outside the lower court records in the Webb case.

Webb and another officer also claimed that the department allowed some officers to wear crosses and other religious items, but they could not provide specific evidence--names and dates, for instance--to satisfy the judges.

Pollock says he appreciates the judges' thoughtful 18-page decision, and has a hunch they may be waiting for a cleaner case to rule on the constitutional issues involved.

Cozen O'Connor represented the city at the district court level, but Eleanor Ewing, a city attorney, argued the case at the Third Circuit. Pollock's wife, Seval Yildirim, a professor at Whittier Law School, served as cocounsel with Pollock; she convinced him to take the case pro bono after reading about Webb's situation, Pollock has said.

As for the next step in the case, Pollock says: "We can always go higher."

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She should have to follow the same rules as non muslim officers.

It's a shame, since the Third Circuit's opinion shows that her lawyers didn't take basic steps like bringing in rebuttal evidence against the Commissioner's testimony, ruining the only claim that wasn't procedurally barred, the Title VII religious discrimination.

Frankly, I don't see why the Third Circuit rendered a "precedential" opinion here -- the case was so poorly presented that the only "precedential" effect will be to confuse lower court judges might see it as a ruling on the merits of these claims in general, a view that will certainly be pushed by defense lawyers.

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