One Three Five, Inc. v. City of Pittsburgh, Civil Action No. 13–467.

• Decision Date: 17 June 2013
• Docket Number: Civil Action No. 13–467.
• Citation: 951 F.Supp.2d 788
• Parties: ONE THREE FIVE, INC. t/d/b/a Blush, Plaintiff, v. CITY OF PITTSBURGH, Acting Chief of Police Regina McDonald, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

951 F.Supp.2d 788

ONE THREE FIVE, INC. t/d/b/a Blush, Plaintiff,

v.CITY OF PITTSBURGH, Acting Chief of Police Regina McDonald, Defendants.

Civil Action No. 13–467.

United States District Court,

W.D. Pennsylvania.

June 17, 2013.

Jonathan M. Kamin, Goldberg, Kamin & Garvin, Pittsburgh, PA, for Plaintiff.

Wendy Kobee, Daniel D. Regan, Stephanie L. Eggar, City of Pittsburgh Department of Law, Pittsburgh, PA, for Defendants.

MEMORANDUM OPINION

NORA BARRY FISCHER, District Judge.

I. INTRODUCTION

In this case, Plaintiff One Three Five, Inc. t/d/b/a Blush (“Plaintiff”), an adult entertainment establishment in downtown Pittsburgh featuring nude, erotic dancing, alleges that its federal constitutional rights to freedom of speech, procedural due process and equal protection of the laws and its Pennsylvania constitutional right to freedom of speech have been violated by the recent decision by Defendant Acting Chief of Police Regina McDonald (“Acting Chief McDonald”) revoking Blush's status as an approved secondary employer under the Bureau of Police's Secondary Employment Program and preventing City of Pittsburgh Bureau of Police officers from working off-duty secondary employment details at adult establishments. (Docket No. 1–1). Plaintiff has moved for a temporary restraining order or, alternatively, a preliminary injunction to enjoin Defendants, the City of Pittsburgh (“the City”) and Acting Chief McDonald from enforcing this directive. (Docket Nos. 3, 4, 5, 25–26). Defendants oppose both motions and contend that Acting Chief McDonald's directive was made to enforce an alleged long-standing restriction on the ability of City police officers to engage in secondary employment at locations that may tend to bring the Bureau into disrepute. ¹ (Docket No. 8, 9, 23–24). However, Defendants admit that the policy has never been enforced in the manner that was taken by Acting Chief McDonald. ( Id.).

The Court held a motion hearing on April 25, 2013 during which the parties presented witness testimony and documentary evidence for the Court's consideration and the evidentiary record has now closed. ( See Docket No. 22; Pl. Ex. 1–3; Def. Ex. B–D). The parties have since filed proposed findings of fact and conclusions of law with respect to the requested temporary restraining order and/or preliminary injunction. ( See Docket Nos. 23–27). Upon consideration of the present evidentiary record and all of the parties' arguments, the Court finds that Plaintiff has met its burden to establish that the issuance of preliminary injunctive relief is appropriate in this case and Plaintiff's Motion [3] will be granted. The Court now turns to its explanation of this decision.

II. FINDINGS OF FACT ²

At the April 25, 2013 hearing, the Court accepted testimony from: Albert Bortz, proprietor of Blush; Anna West, head bartender at Blush; Officer Bernard Joseph McMullan of the City of Pittsburgh Bureau of Police, who also worked secondary employment details at Blush; Sabrina Bortz, payroll manager at Blush; Lieutenant Jennifer Ford of the City of Pittsburgh Bureau of Police; Acting Chief McDonald; and Sergeant Michael LaPorte of the City of Pittsburgh Bureau of Police and President of the Fraternal Order of Police Fort Pitt Lodge No. 1 (“FOP”).³ (Docket No. 22). The Court found all of the witnesses to be generally credible and truthful throughout their respective testimonies. The parties also submitted all of the following documents into evidence: Order 29–1 (Pl. Ex. 1); Arbitration Award (Pl. Ex. 2); Deposition of Regina McDonald (Pl. Ex. 3); IACP Model Policy on Secondary Employment (Def. Ex. B); Pittsburgh Post–Gazette article “Special events office channels millions in off-duty Pittsburgh Police pay” dated 2/26/13 (Def. Ex. C); and a Triblive article “Pittsburgh policies for off-duty police officers' gigs lax” dated March 11, 2013 (Def. Ex. D).⁴

The Court holds that the credible evidence presented during the hearing established the following facts by a preponderance of the evidence.

A. Historical Background of Bureau's Governance of Off–Duty Conduct of Officers

The parties agree that the City of Pittsburgh Bureau of Police and the Acting Chief of Police have the authority to create and enforce policies governing the off-duty conduct of City of Pittsburgh police officers. (Docket No. 22 at 203–04). Indeed, they have stipulated that police departments have the authority to discipline officers for off-duty conduct, including for engaging in conduct unbecoming an officer and that there are policies, procedures and guidelines that are adopted by any police department that provide for discipline of an officer based on his or her engaging in certain improprieties while off-duty. ( Id.). However, the regulation of officers' off-duty conduct by the Bureau and Chief are issues that have been subject to collective bargaining and arbitration between the Bureau and the FOP. ( See Pl. Ex. 2; Docket No. 10–1).

Acting Chief McDonald testified that the Bureau has historically permitted its officers to engage in off-duty secondary employment “details” within the City limits wherein officers essentially provide security services to private businesses while wearing their full police uniform and carrying their Bureau-issued weapons in exchange for a fee paid by the private business to the City and for wages paid by the private business to the individual officer working in this capacity. (Docket No. 22 at 151). In these roles, officers are authorized to enforce City ordinances and laws, as if they were on-duty. ( Id.). Due to jurisdictional limitations on the scope of the arrest powers afforded to law enforcement officers in other municipalities and other conflicts which are not directly relevanthere,⁵ it is undisputed that City of Pittsburgh police officers are the only law enforcement officers who could provide the same type of service to a business located within the City limits. ( Id. at 181, 185).

B. Bureau's Policy–Making Practices and Procedures

The record evidence before the Court demonstrates that such off-duty details by police officers have been permitted by the Bureau since at least 1966. ( Id. at 17, 151). For many years the practice was permitted by the Bureau without a written policy governing same.⁶ ( Id. at 151). As is discussed in further detail below, over time, the Bureau developed a policy governing the off-duty employment of its officers. Lieutenant Ford, Acting Chief McDonald and Sergeant LaPorte testified consistently concerning the procedures employed by the Bureau to establish a new policy or revise a current policy. (Docket No. 22 at 99, 123, 175, 193–95). Lieutenant Ford was familiar with these procedures as she has held a position overseeing policy writing within the Bureau since 2004. ( Id. at 99, 123). Acting Chief McDonald likewise testified that she was familiar with the procedures for policy writing given her prior roles on a labor-management committee and as Assistant Chief for Administration for which her duties included oversight of the Special Events Office. ( Id. at 175). Sergeant LaPorte also had some involvement with the review of Bureau policies given his role as President of the FOP. ( Id. at 193–95).

The Bureau uses its internal staff to draft new policies and revise its current policies. ( Id. at 99). The initial request to draft or revise a policy is usually made by the Chief of Police or one of the higher Commanders in the Bureau to Lieutenant Ford and/or an officer who assists her in drafting the policies. ( Id.). The Bureau maintains a “bank” of model policies which are referenced for guidance and used as a base to develop the new or revised policy. ( Id.). The primary set of model policies that is maintained by the Bureau is produced by the International Association of Chiefs of Police (“IACP”) National Law Enforcement Policy Center. ( Id.; Def. Ex. B). Lieutenant Ford testified that this organization has a model policy writing center and that the model policies it produces may be used by any police department in drafting policies. ( Id. at 101). She explained that the IACP model policies are often accompanied by white papers or research detailing the reasons for the language incorporated into the suggestedmodel policy. ( Id. at 101–02). She also understands that the IACP model policies are considered best practices for law enforcement agencies and are widely used by other police departments in developing policies. ( Id. at 102). In addition to using the model policies, the officers tasked with drafting the policy will often meet with the higher level officers who requested the new policy or revision and/or with any officers who are considered experts on the subject matter of the policy and will incorporate their suggestions into the policy. ( Id. at 100). On occasion, the officers may secure a legal opinion concerning a policy from the City's Legal Department. ( Id. at 123).

The first draft of a policy is prepared by Lieutenant Ford or another officer working with her. ( Id. at 100). It is then sent for an initial level of review to the command staff, which consists of the Chiefs and Commanders of the Bureau, and to a set of police supervisors who have been asked to review policies. ( Id. at 100). This initial review period typically lasts about a week. ( Id. at 101). Lieutenant Ford testified that any comments, suggestions or concerns regarding the policy which are made during this level of review are typically incorporated into the policy. ( Id.). After any necessary revisions are made, the policy is then sent to the FOP for its review. ( Id.). Under the collective bargaining agreement (“CBA”) ⁷ between the City and the FOP, the FOP is granted fifteen (15) days to consider the proposed policy and to respond with comments, suggestions or concerns as to same. ( Id.). The officers will consider any response from the FOP and incorporate any necessary revisions into the policy. ( Id.). After all changes...