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Lodge No. 5 of the Fraternal of Police v. City of Philadelphia

February 21, 2013


The opinion of the court was delivered by: Juan R. Sanchez, J.


In this § 1983 action, Plaintiffs Lodge No. 5 of the Fraternal Order of Police (FOP), the FOP's political action committee (COPPAC), and City of Philadelphia Police Officers David Byrne, Shawn Carey, Jeffrey Seamon, and Les Baker challenge the constitutionality of a provision of the Philadelphia Home Rule Charter prohibiting political contributions by members of the Philadelphia Police Department (PPD). Plaintiffs allege the Charter provision violates their rights of free speech and association under the First and Fourteenth Amendments of the United States Constitution, their equal protection rights under the Fourteenth Amendment, and similar rights under Article I, Sections 7, 20, and 26 of the Pennsylvania Constitution. They bring these claims against the City of Philadelphia, Philadelphia Mayor Michael A. Nutter, the Philadelphia Board of Ethics, Ethics Board Executive Director, J. Shane Creamer, and Board members William H. Brown, Richard Glazer, Sanjuanita Gonzalez, Phyllis Beck, and Michael H. Reed (collectively, "the City"). Plaintiffs seek an order declaring the Charter provision and implementing Board of Ethics regulations unconstitutional and enjoining the City from enforcing the ban on political contributions, as well as monetary damages.*fn1 The parties have filed cross-motions for summary judgment. For the following reasons judgment will be entered in favor of the City and against Plaintiffs.


The systemic political corruption that plagued Philadelphia City government, including its police force, in the first half of the twentieth century is well documented.*fn3 Virtually every aspect of government was dominated by political party organizations. By controlling the highest levels of City government, the party in power was able to build a "patronage army" of City employees, whose duty was to serve the party above all else.*fn4 City employees, including members of the PPD, were critical to the party's electoral success both by getting out the vote, which included facilitating voter fraud, and by providing obligatory political contributions referred to as "political assessments."*fn5 On some occasions, especially in the early part of the century, police used brute force to secure election victories.*fn6 One particularly infamous incident, which resulted in the conviction of six police officers, involved the beating of an opposition candidate and murder of a detective.*fn7 In 1919, the City enacted reforms aimed at reducing corruption within government and the PPD. One such provision forbade all police officers from coming within 50 feet of a polling place except to vote or when needed to make an arrest, after which the officers were required to "at once withdraw." 1919 P.L. 581 (hereinafter, "1919 Charter"), Art. XIX, § 23. Another provision prohibited members of the Fire and Police Departments from making any political contributions. Id. While these efforts made small gains, the patronage system nevertheless persisted through the 1940s, begetting rampant corruption, including politician-sanctioned criminal enterprises facilitated by members of the PPD.*fn8

The 1951 Philadelphia Home Rule Charter introduced more robust reforms to reduce public corruption, see Phila. Home Rule Charter §§ 10-100 to 10-111,alsocodified at 351 Pa. Code §§ 10.10-100 to 10.10-111, including sweeping restrictions on City employees' participation in political activities, see 351 Pa. Code § 10.10-107. Section 10.10-107(3), modeled after the nearly identical provision in the 1919 Charter, prohibits City employees from soliciting or collecting political contributions, and also provides: "No officer or member of the Philadelphia Police or of the Fire Department shall pay or give any money or valuable thing or make any subscription or contribution, whether voluntary or involuntary, for any political purpose whatever." Id. § 10.10-107(3).

In a 2003 decision, another court in this District found the ban on voluntary political contributions, as it applied to firefighters, violated the First and Fourteenth Amendments and enjoined its enforcement against uniformed employees of the Philadelphia Fire Department. Phila. Fire Fighters' Union Local 22 v. City of Philadelphia, 286 F. Supp. 2d 476 (E.D. Pa. 2003) (Dalzell, J.). The City did not appeal that decision and has ceased enforcing the contributions ban against City firefighters, although it continues to enforce the ban against PPD employees.

In 2006, the Philadelphia City Council, with the Mayor's approval, passed an ordinance permitting payroll deductions for FOP members for the benefit of FOP's political action committee, COPPAC. Phila, Pa. Bill No. 060181, codified at Phila. Code § 19-203. The City, however, on the advice of the City Solicitor, refused to implement the COPPAC payroll deductions for PPD employees, concluding that such contributions would violate the ban in 351 Pa. Code § 10.10-107(3). In March 2011, the Philadelphia Board of Ethics promulgated regulations implementing and interpreting § 10.10-107(3), which state PPD employees may not make any political contributions. See Phila. Bd. of Ethics Reg. 8.8 ("An appointed officer or employee, except for an appointed officer or employee of the Police Department, may make contributions intended for a political purpose."), 8.14 (prohibiting Police Department members from making political contributions).

On May 18, 2011, Plaintiffs filed the instant lawsuit, asserting four separate claims. Count I alleges the ban on political contributions by PPD employees in § 10.10-107(3) and its implementing Board of Ethics regulations unlawfully infringes on Plaintiffs' rights to political expression and association in violation of the First and Fourteenth Amendments of the United States Constitution. Count II alleges the ban also violates their right to equal protection of the laws under the Fourteenth Amendment because the City treats members of the Police Department differently than other City employees with respect to political contributions. Count III alleges the City's failure to implement the COPPAC payroll deductions also violates their equal protection rights. Count IV alleges the ban and the City's refusal to implement the payroll deductions also violate Plaintiffs' rights to free speech, free association, and the equal protection of the laws guaranteed by Article I, Sections 7, 20, and 26 of the Pennsylvania Constitution. Plaintiffs and the City filed motions for summary judgment, and oral argument was held July 11, 2012.


Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Material" facts are those facts "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). "On a motion for summary judgment, a district court must view the facts in the light most favorable to the non-moving party and must make all reasonable inferences in that party's favor." Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005). The parties agree this case should be decided on summary judgment, as there are no disputed material facts.

The First and Fourteenth Amendments' protection of speech and association undisputedly extends to political contributions. Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 386-87 (2000); see also Buckley v. Valeo, 424 U.S. 1, 21 (1976) (noting "[a] contribution serves as a general expression of support for the candidate and his views" and "[m]aking a contribution, like joining a political party, serves to affiliate a person with a candidate").*fn9 Although individuals do not relinquish their First Amendment rights by entering public employment, "the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968); accord United Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 102 (1947) ("We have said that Congress may regulate the political conduct of Government employees 'within reasonable limits,' even though the regulation trenches to some extent upon unfettered political action."); Reeder v. Kan. City Bd. of Police Comm'rs, 733 F.2d 543, 547 (8th Cir. 1984) ("The Supreme Court has clearly stated that government may impose on its own employees rather substantial restrictions on political activity that is open without question to the citizenry at large."); Gasparinetti v. Kerr, 568 F.2d 311, 316 (3d Cir. 1977) (recognizing "the State has a greater interest in regulating the speech of public employees than in regulating the speech of citizens in general"). The constitutionality of a restraint on public employees' First Amendment freedoms, therefore, is determined by balancing the public and private interests implicated by the restriction. United States v. Nat'l Treasury Emps. Union, 513 U.S. 454, 465-68 (1995); U.S. Civil Serv. Comm'n v. Nat'l Ass'n of Letter Carriers AFL-CIO, 413 U.S. 548, 564 (1973) (hereinafter Letter Carriers); Pickering, 391 U.S. at 568.

The contributions ban in 351 Pa. Code § 10.10-107(3) is subject to review under the analysis set forth in United States v. National Treasury Employees Union, 513 U.S. at 468 (hereinafter NTEU). The NTEU standard applies when a "generally applicable statute or regulation, as opposed to a particularized disciplinary action," restricts a government employee's expression on a matter of public concern. Swartzwelder v. McNeilly, 297 F.3d 228, 237 (3d Cir. 2002) (quoting Latino Officers Ass'n, N.Y. v. City of New York, 196 F.3d 458, 464 (2d Cir. 1999)). Here, the City's ban on political contributions by PPD employees acts as a wholesale deterrent to an entire category of political expression which obviously concerns the public's interests. See Phila. Firefighters Union, 286 F. Supp. 2d at 481-82 (applying the NTEU standard to the contributions ban in § 10.10-107(3)); see also Buckley, 424 U.S. at 14-15 (recognizing political contributions are fundamental First Amendment activity akin to "the free discussion of governmental affairs" (quotation omitted)).

Applying the NTEU standard, the ban will be upheld only if the City can show that the interests of PPD members, and of the public, in PPD members' political contributions are outweighed by the City's interest in preventing those contributions' necessary impact on the actual operation of City government. See NTEU, 513 U.S. at 468.*fn10 Furthermore, the City must demonstrate the harmful effects of PPD employee contributions "are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Id. at 475 (quotation omitted). The Third Circuit Court of Appeals, in Swartzwelder v. McNeilly, observed that although NTEU did not explicitly set forth a tailoring requirement, "such a requirement seems to be implicit in the Court's discussion." 297 F.3d at 236; see also NTEU, 513 U.S. at 473-77 (invalidating a "crudely crafted" ban on honoraria for federal employees because the ban was not "reasonably necessary" to protect the government's interest and not "a reasonable response to the posited harms"). The Swartzwelder Court, applying the NTEU standard to a city policy prohibiting police officers from testifying as experts without authorization, went on to hold the policy likely violated the First Amendment as insufficiently tailored because it was "ill-suited" and "not carefully crafted" to serve the interests posited by the city. 297 F.3d at 238-40. The City, therefore, must also show the ban is "a reasonable response" to the harmful effects of PPD employee political contributions. NTEU, 513 U.S. at 473, 476.*fn11

The interests of current and future PPD employees in making political contributions are significant but are nevertheless distinguishable from other kinds of First Amendment political expression. On the one hand, expression concerning public issues, such as politics, "occupies the highest rung of the h[ie]rarchy of First Amendment values, and is entitled to special protection." Connick v. Myers, 461 U.S. 138, 145 (1983) (internal quotation omitted). "The First Amendment affords the broadest protection" to political expression "in order to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Buckley, 424 U.S. at 14 (internal quotation omitted). In addition, the ability of PPD employees, through donations, to affiliate themselves with a political cause and pool their resources to further a common political objective falls squarely within the First Amendment's right of association. ...

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