Fenico v. City of Phila.
| Citation | 582 F.Supp.3d 229 |
| Decision Date | 26 January 2022 |
| Docket Number | CIVIL ACTION NO. 20-3336 |
| Parties | Christian FENICO, et al., Plaintiffs, v. CITY OF PHILADELPHIA, Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Emily Castro, Larry L. Crain, Crain Law Group, PLLC, Brentwood, TN, Jonathan J. Sobel, Philadelphia, PA, for Plaintiffs Christian Fenico, Thomas Young, Thomas Gack, Edward McCammitt, Tanya Grandizo, Anthony Anzideo, Anthony Acquaviva, Kristine Amato, Joseph Przepiorka.
Larry L. Crain, Crain Law Group, PLLC, Brentwood, TN, for Plaintiffs William Bowdren, Raphael McGough, Francis T. Sheridan.
Brian Matthew Rhodes, City of Philadelphia City Solicitor, Frank E. Wehr, II, Meghan A. Byrnes, City of Philadelphia Law Department, Philadelphia, PA, for Defendant.
Presently before the Court is Defendant City of Philadelphia's Motion to Dismiss Plaintiffs’ Amended Complaint (ECF No. 18), Plaintiffs’ Response in Opposition (ECF No. 24), and Defendant's Reply Brief (ECF No. 26). Upon careful consideration of the Parties’ submissions, exhibits, and for the reasons outlined below, Defendant's Motion is GRANTED , and Plaintiffs’ Amended Complaint is DISMISSED WITH PREJUDICE .
This case is about public employees’ social media use and a government entity's decision to discipline their employees based on past Facebook posts. The Plaintiffs2 here are a group of current and former members of the Philadelphia Police Department ("the PPD") who were reprimanded because of content they posted on their personal Facebook accounts. The posts in question spanned a multitude of topics such as protestors and their treatment, the use of violence against child molesters, Islam and its followers, refugees, police brutality, and much more. Because of the PPD's discipline, Plaintiffs now allege Defendant violated their First and Fourteenth Amendment rights as well as rights under the Pennsylvania Constitution.
In 2016, Emily Baker-White, a former Federal Community Defender Staff Attorney, founded the Plain View Project ("Plain View"). Pls.’ Amend. Compl. ¶ 2. Plain View "is a database of public Facebook posts and comments made by current and former police officers from several jurisdictions across the United States." THE PLAIN VIEW PROJECT , https://www.plainviewproject.org/ (last visited January 24, 2022); see also Pls.’ Amend. Compl. ¶ 2. Prior to its inception, the organization's lawyers determined that numerous local police officers across the country had posted content which appeared to endorse violence, racism, and bigotry;3 thus, to shed a light on the issue, the Plain View was born. THE PLAIN VIEW PROJECT , https://www.plainviewproject.org/ (last visited January 24, 2022); see also Pace v. Baker-White , 432 F. Supp. 3d 495, 499 (E.D. Pa. 2020).
The Plain View's website described its step-by-step methodology in obtaining and compiling the posts. THE PLAIN VIEW PROJECT , https://www.plainviewproject.org/about (last visited January 24, 2022); see also Pace , 432 F. Supp. 3d at 499. First, it acquired eight jurisdictions’ publicly published police officer rosters and then searched Facebook for the officers’ names. Pace , 432 F. Supp. 3d at 499. Next, it created a list and used several verification processes to confirm that the profiles in question were maintained by an officers on the roster. THE PLAIN VIEW PROJECT , https://www.plainviewproject.org/about (last visited January 24, 2022). The Plain View would then capture the screen with the verifying information and add it to their files. Id.
The Plain View gathered these verified Facebook profiles and reviewed each post, image, or comment to ensure it met their criteria.4 THE PLAIN VIEW PROJECT , https://www.plainviewproject.org/about (last visited January 24, 2022). Finally, it curated these digital profiles and made them available on its website where visitors can find posts through a searchable database. Id. In all, the Plain View captured public posts and comments that were published on Facebook. Id.
As with most institutions, the PPD possesses a Code of Ethics and a set of Directives that all employees must, not only follow, but swear an oath to. A part of that Oath declares that the officer's "fundamental duty is to serve the community; to safeguard lives; ... to respect the Constitutional rights of all persons to liberty, equality, and justice" and keep their lives "unsullied as an example to all." See ECF No. 18-2, p. 4. The Oath goes on to state that "[officers] will never act officiously or permit personal feelings, prejudices, animosities, or friendships to influence my decision." Id. Officers further pledge that they "will enforce the law courteously and appropriately ... never employing unnecessary force or violence" Id. at 5. Finally, Philadelphia Police Officers vow to "recognize the badge of [their] office as a symbol of public faith, and [ ] accept it as a public trust to be held so long as [they are] true to the ethics of the police service." Id.
Besides the Directives and Code of Ethics, the City also had a social media policy in effect at the time Plaintiffs were employed and created their posts. Pls.’ Amend. Compl. ¶ 4. These directives are known as Directive 6.10, Social Media and Networking ("Social Media Policy"). Id. The Social Media Policy stated, in part:
Employees who are off-duty and using privately-owned property to engage in the personal use of social media, do not represent the City of Philadelphia, the Philadelphia Police Department, or any official position maintained by either entity. Under such conditions, employees represent only themselves and their personal interests.
Id. It also prohibited the use of ethnic slurs, profanity, personal insults, material that is harassing defamatory, fraudulent, or discriminatory, or content and communications that would not be acceptable in a City workplace or under city agency, policy, or practice on social media. See Pls.’ Amend. Compl. Ex. A. It specifically states:
[A]s members of the Philadelphia Police Department, employees are embodiments of its mission. It is, thus essential, that each member accepts his or her role as an ambassador of the department. In doing so, each member must strive to maintain public trust and confidence, not only in his or her professional capacity, but also in his or her personal and on-line activities. Moreover, as police personnel are necessarily held to a higher standard than general members of the public the online activities of employees of the police department shall reflect such professional expectations and standards.
To be sure, the Directive came with a warning, and informed employees that the "personal use of social media has the potential to impact the department as a whole, as well as individual members serving in their official capacity." Directive 6.10, § 2(A). It stressed that employees have "no reasonable expectation of privacy when engaging" in social media and that anything posted "may be obtained for use in criminal trials, civil proceedings, and departmental investigations." Id. at § 4(H).
Although the Policy detailed that any posts made while an employee was off duty did not represent the PPD, the Directive informed employees that they "conduct themselves as representatives of the department [at all times] and, accordingly, adhere to all department policies and standards of conduct, and observe conventionally accepted protocols and proper decorum." Directive 6.10, § 5(B)(2)(b)(2).
Each of the Plaintiffs are current or former police officers who have long served, at varying lengths of time, the great city of Philadelphia.5 Each has won multiple awards documenting their service and commitment to the community, their heroics, and their skill in their field. Moreover, many of the Plaintiffs have never been disciplined by the PPD prior to their Facebook posts becoming public.
The PPD employed Christian Fenico from 2003 until July 17, 2019. Pls.’ Amend. Compl. ¶ 26. During his seventeen-year career, he received twenty-three awards and honors, such as the ASIS International Award for Meritorious Service to the Greater Philadelphia area and Medal of Lifesaving for saving a six-year-old girl from fatally choking. Id. at ¶¶ 31-32. The Amended Complaint goes on to list more medals, awards, and detail Plaintiff's enviable career. Fenico also had a "near spotless record" and only received one counseling memo, which the PPD did not consider as punishment or discipline. Id. at ¶ 53.
Plaintiff Thomas Young entered the police academy on November 20, 1989 and, upon graduation, served for approximately 30-years before to his eventual termination. Pls.’ Resp. at 6. Prior to his release from the Department, Young received two bravery Commendations for arresting suspects armed with firearms without firing his own weapon. Pls.’ Amend. Compl. ¶ 74. Furthermore, the Amended Complaint stresses his character, ethics, and job performance; for example, the PPD only reprimanded Young once in his 30-years of service, in 2005, which was the "mildest form of discipline." Id. at ¶ 75.
The PPD hired Plaintiff Thomas Gack in 1993; he went on to serve for approximately 25 years, until August 16, 2019 when he was discharged. Pls.’ Resp. at 7-8. Gack holds a certification in: (1) Major Incident Response Team; (2) biohazard response; (3) riot training; and (4) radiological detection. Pls.’ Amend. Compl. ¶ 91. Like Fenico, Gack also received many awards and honors for his service. Id. at ¶ 92.
The City hired Plaintiff Edward McCammitt in 1986 as a police officer where he was initially assigned to the 22nd District, transferred to the 2nd District, and, finally, to the Traffic Division. Pls.’ Amend. Compl. ¶¶ 110-111. Like his co-plaintiffs, McCammitt is certified in a multitude of skills, trainings, and programs and received...
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