still waiting for concrete examples

[Hamilton02 at aol.com]

Art--  We may only be talking to each other at this point, but the  facts 
matter in these cases.  So why do you think DC moved to an  across-the-board 
rule regarding beards and why does the rule appear in fire  companies across 
the country?  If it was all a pretext, why not just give  up and let 
everyone wear a beard?
 
 
In a message dated 6/22/2009 9:03:23 P.M. Eastern Daylight Time,  
ArtSpitzer at aol.com writes:

In a message dated 6/22/09 1:31:13 PM, Hamilton02  writes:



I have to ask Art one question--  It seems quite  clear from the record 
that there really is a danger to those with facial  hair in responding to 
emergencies....



Those not interested in the minutiae  of the case can press delete now.  
I've pasted below a short (500 word)  excerpt on safety from my opposition to 
the Fire Department's petition for  rehearing.  The petition was denied.

Art 

III.     This Case Does Not Present a  Serious Issue of Public Safety.

The District  urges the Court to apply a “particularly strong” preference 
for resolving this  case on the merits, because “public safety is at issue.”
  Pet. at  8.  But the district court's judgment poses no threat to public  
safety.
The D.C. Fire Department, as a matter of  official policy, allowed hundreds 
of firefighters to  wear beards from sometime before 1973 until mid-2005. 
[Citation.] While  initially limited to men with a skin condition, from 1994 
until 2005  all employees were permitted to wear  beards, and many did. 
[Citation omitted.] It is uncontradicted that these  thousands of man-years of 
bearded firefighting did not result in a single  safety problem. [Citation.]
At the very outset of  this litigation, the retired Chief of Safety of the 
F.D.N.Y. explained in  detail why facial hair does not undermine the safety 
of an SCBA  [Self-Contained Breathing Apparatus].  [Citation.]  Faced with 
that  compelling evidence, the Fire Department did not appeal the preliminary 
 injunction issued at that time, and made no effort to pursue the 
litigation in  the district court for four years, during which time all firefighters 
remained free to wear  beards. [Footnote omitted.] That changed in 2005, 
when the district court grew  tired of having this case sit dormant on its 
docket and ordered the Fire  Department to file within 15 days “a plain 
statement of what its official  policy is with respect to facial hair.” R. Doc. 60.  
Seventeen days later  the Department announced the new policy that is at 
issue in this case. R. Doc.  61.
When called before the district court to  justify the new rule, the Fire 
Department represented--at length and  unambiguously--that its safety concern 
was limited to the use of  negative-pressure respirators in circumstances 
not requiring the greater  protection of SCBAs.  [Citation.]  The Department 
explained that  “what we're worried about is a situation where you have to go 
into a  contaminated area for an extended period of time,” and an SCBA 
would not be  suitable because “once the air runs out, that's it,” while “
negative pressure  masks . . . will allow them to work.  They can work the eight 
hours.  [Citation.]  That explanation never changed until after summary 
judgment  had been entered.
The district court rejected the  District's argument on the ground that it 
had not adduced credible evidence  that in such a situation “bearded 
firefighters  . . . could not be  redeployed either 'up' to areas of duty where 
SCBA use is required, or 'down'  to cold zones where no respiratory protection 
is needed.”  Mem. Op. at  19.  The District did not contest that ruling on  
appeal.
The record here should therefore leave the  Court entirely comfortable that 
its affirmance of the district court's  judgment creates no danger to the 
public safety of the District of  Columbia.  The handful of bearded 
firefighters and paramedics protected  by the permanent injunction in this case can 
hardly be cause for alarm in  light of the undisputed fact that the D.C. Fire 
Department protected the city  for more than 30 years with hundreds of 
bearded firefighters, without a single  beard-related safety incident.








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