Fraternal Order of Police Lodge No. 5 v. City of Phila.

• Decision Date: 09 November 2021
• Docket Number: No. 1295 C.D. 2019,1295 C.D. 2019
• Citation: 267 A.3d 531
• Parties: FRATERNAL ORDER OF POLICE LODGE NO. 5, BY its guardians ad litem, John MCNESBY, President; Roosevelt Len Poplar, Vice President; John McGrody, Vice President; Steve Weiler, Vice President; Nicholas Denofa, Vice President; Police Officer Sean Cahill; Detective Michael DeRose; Police Officer Richard Green; Police Officer Constance Harris; Police Officer Matthew Nodiff; and Police Officer Anthony Roselli, Appellants v. The CITY OF PHILADELPHIA, its Officials, Agents, Employees and Assigns; Jim Kenney, in his official capacity as Mayor of the City of Philadelphia ; Larry Krasner, in his official capacity as District Attorney of the City of Philadelphia; R. Richard Ross Jr., in his former capacity as Police Commissioner of the City of Philadelphia
• Court: Pennsylvania Commonwealth Court

267 A.3d 531

FRATERNAL ORDER OF POLICE LODGE NO. 5, BY its guardians ad litem, John MCNESBY, President; Roosevelt Len Poplar, Vice President; John McGrody, Vice President; Steve Weiler, Vice President; Nicholas Denofa, Vice President; Police Officer Sean Cahill; Detective Michael DeRose; Police Officer Richard Green; Police Officer Constance Harris; Police Officer Matthew Nodiff; and Police Officer Anthony Roselli, Appellants

v.The CITY OF PHILADELPHIA, its Officials, Agents, Employees and Assigns; Jim Kenney, in his official capacity as Mayor of the City of Philadelphia ; Larry Krasner, in his official capacity as District Attorney of the City of Philadelphia; R. Richard Ross Jr., in his former capacity as Police Commissioner of the City of Philadelphia

No. 1295 C.D. 2019

Commonwealth Court of Pennsylvania.

Argued June 11, 2020

Decided November 9, 2021

Ralph J. Teti, Philadelphia, for Appellants.

Jennifer MacNaughton, Philadelphia, for Appellees City of Philadelphia, Mayor Jim Kenney, and Commissioner Richard R. Ross, Jr.

Ira N. Richards, Philadelphia, for Appellee Larry Krasner.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge,¹ HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE McCULLOUGH

The Fraternal Order of Police Lodge No. 5 (FOP), by its guardians ad litem ,² and six City of Philadelphia Police Officers³ (collectively, Appellants) appeal from the orders dated August 21, 2019, issued by the Court of Common Pleas of Philadelphia County (trial court), sustaining the preliminary objections (POs) of The City of Philadelphia (City), Jim Kenney, in his official capacity as Mayor, R. Richard Ross, Jr., in his official capacity as (former) Police Commissioner (collectively, "the City"), and Larry Krasner, in his official capacity as District Attorney (DA Krasner or District Attorney), and dismissing Appellants' action for injunctive and declaratory relief with prejudice. We affirm in part and vacate in part the trial court's orders and remand for further proceedings.

I. Facts and Procedural History

In March 2017, (now former) Philadelphia District Attorney, Seth Williams, created a Police Misconduct Review Committee to identify Philadelphia police officers whose testimony should be avoided in criminal cases. (Second Amended Complaint⁴ (Complaint) ¶35, Reproduced Record (R.R.) at 12a-13a.) As a result of the investigation, 66 officers who were accused of committing serious misconduct were placed on a "Do Not Call List,"⁵ which was made available to prosecutors who used it to identify which officers not to call during trial. Id. ¶36; R.R. at 13a. This List "of Philadelphia's 66 problem cops" was published in a Philadelphia newspaper on March 16, 2018. The newspaper included information about on-duty and off-duty misconduct contained in the officers' personnel files.⁶ Id. ¶¶51-52; R.R. at 16a.

Complaint

DA Krasner took office in November 2017. On November 13, 2018, Appellants filed the instant action alleging that the District Attorney was actively compiling materials from the personnel files of police officers obtained from the Police Commissioner⁷ concerning allegations of purported police officer misconduct – even in which the police officer was exonerated by an administrative or other judicial or quasi-judicial body – in order to compile a new, updated "Do Not Call List."⁸ Id. ¶¶53-54; R.R. at 16a-17a, 194a. In an article published in a Philadelphia newspaper on June 4, 2018, and attached to the complaint as Exhibit "H," it was reported that DA Krasner was "seeking to develop a comprehensive list of tainted cops" and that he recently stated in an interview that the number of officers who will ultimately "end up on the roster would almost certainly exceed the 66 on a similar list developed by his predecessor."⁹ In that article, DA Krasner was also quoted as saying he was "compiling a database of infractions" that will help identify those officers who are "too questionable to testify." Id. The complaint alleges that DA Krasner had openly voiced his frustration with FOP's history of defending police officers who had been punished by the City. The complaint alleges that DA Krasner publicly claimed that the Police Commissioner "has almost no capacity to discipline, terminate, or even move [officers] to another unit because everything is overturned in the corrupt arbitration process." Id. ¶50; R.R. at 16a (emphasis removed) (quoting from an article in The New Yorker Magazine , Complaint Exhibit "G;" R.R. at 189a).

It is averred that, by its terms and as applied, the new Do Not Call List impermissibly mandates disclosure of police officers' confidential personnel information to the District Attorney and then to third parties when the officer is charged with a violation of a Philadelphia Police Department (PPD) policy or procedure, but is later exonerated, by the Police Board of Inquiry (PBI), PPD's Internal Affairs Division (IAD), a labor arbitrator, or a court. Id. ¶101; R.R. at 27a.

The complaint alleges that the appellant police officers were not informed that they were being investigated or considered for the new Do Not Call List; they were only informed after they were placed on the List by the following form letter (Letter(s)):

The [District Attorney's Office] has received Giglio [v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ] information regarding you as reflected in the summary below:

Date:

Source:

Summary:

Action:

Pursuant to the law and the [District Attorney's Office's] policy regarding police misconduct disclosures, the misconduct will be disclosed to the defense in all cases where you may be called to testify as a witness and said disclosure may also be made if required in closed cases where you were a critical witness.

Also, if required by law, supporting documentation in our possession regarding the misconduct will be disclosed to the defense.

Please note, if you believe our information is incorrect, feel free to communicate to us in writing through counsel.

Id. ¶¶61-65, 98; Complaint Exhibit "R"; R.R. at 18a-19a, 25a-26a, 231a. (Emphasis added.)

The complaint alleges that once placed on the Do Not Call List, police officers have lost opportunities to testify in criminal cases in which they served as investigator, and sometimes were subject to transfer to other departments or delegated to restrictive duty status. Id. ¶¶78, 90-91; R.R. at 21a, 24a. The complaint further alleges that for these officers, critical parts of police work were restricted, resulting in lost wages, reputational damage, and professional harm. Id. The complaint also alleges that the appellant police officers were not removed from the Do Not Call List even after the allegations of misconduct were determined to be unfounded or lacking in merit. Id. at 5; R.R. at 5a.

The complaint avers that the appellant police officers were not informed that they were placed on the Do Not Call List until after the fact, nor were they provided an opportunity to challenge their inclusion on the List prior to or after being placed on the List. Appellants allege that the District Attorney, with assistance from the City, is engaging in the "wholesale release of confidential personnel information to third parties without an opportunity to be heard to challenge the legal necessity of such release" and that such disclosure has had a "direct and negative impact" on the appellant police officers' reputations amongst their colleagues and the public, as well as their work assignments and promotional opportunities, and constitutes violations of their statutory and constitutional rights. Id. at 5-6; R.R. at 5a-6a. The complaint alleges that public disclosure of the new List, as ultimately occurred with the prior List, has and will result in reputational harm to the appellant police officers. Id. ¶83; R.R. at 22a.

For each named appellant police officer, the complaint summarizes the allegations of misconduct, the contents of the Letter he/she received, that each officer was exonerated of the charges (acquittal by federal grand jury, exoneration before PBI),¹⁰ that each officer was not afforded an opportunity to challenge inclusion on the List prior to or after being placed on it, and how each officer was harmed either by the violation of his/her statutory and constitutional rights or the loss of assignments, overtime, promotional considerations. Id. ¶¶102-203; R.R. at 27a-45a.

The complaint consists of seven counts and requests injunctive and declaratory relief.

Counts I and II - Violation of Due Process with Respect to Officers' Right to Reputation under Pennsylvania Constitution – Equitable and Declaratory Relief

In Counts I and II, it is averred that article I, sections 1, 11, and 26 of the Pennsylvania Constitution recognize a fundamental right to privacy that protects one's reputation. Pa. Const. art. I, §§ 1, 11, 26.¹¹ App ellants allege that the creation of the Do Not Call List and the disclosure of appellant police officers' confidential personnel information to DA Krasner and criminal defense counsel without notice and an opportunity to be heard constitutes a deprivation of fundamental rights enshrined in the Pennsylvania Constitution. (Complaint, ¶213; R.R. at 47a.) Appellants aver that officers are only notified after their confidential personnel information has been disclosed to the District Attorney. Id . ¶216; R.R. at 47a. Appellants aver that, although police officers' counsel are invited to communicate to the District Attorney's Office if the officer believes the information is "incorrect," the District Attorney retains sole discretion to decide whether to keep the officer on the List. Appellants submit that there is no procedure in place for officers, who have been exonerated, to seek removal from the List. They contend that the inability to challenge...