08 SEP 2017 02:55 pm E. MASCUILLI City of Philadelphia Law Department Cara E. Leheny Attorney I.D. No. 88890 Divisional Deputy City Solicitor Benjamin Patchen Attorney I.D. No. 316514 One Parkway-16th Floor 1515 Arch Street Philadelphia, PA 19102 (215) 683-5081 (215) 683-5099 (fax) MICHAEL G. LUTZ LODGE NO. 5 OF THE FRATERNAL ORDER OF POLICE, through its Trustee Ad Litem, JOHN MCNESBY, Plaintiff, vs. CITY OF PHILADELPHIA Defendant. : : : : : : : : : : : : COURT OF COMMON PLEAS PHILADELPHIA COUNTY AUGUST TERM, 2017 NO. 2516 CITY OF PHILADELPHIA’S MEMORANDUM OF LAW IN OPPOSITION TO MICHAEL G. LUTZ LODGE NO. 5 OF THE FRATERNAL ORDER OF POLICE’S APPLICATION FOR RELIEF SEEKING A PRELIMINARY INJUNCTION I. Matter Before the Court Presently before the Court is the application for injunctive relief filed by plaintiff Michael G. Lutz Lodge No. 5 of the Fraternal Order of Police (“FOP”). In the application, the FOP asks this Court to enjoin a two-year old Philadelphia Police Department policy because of speculative harm that may or may not someday befall some unidentified officer at some unknown time in the future. The FOP seeks relief under the Court’s equitable powers, but notably ignores its obligation to strictly comply with the Labor Anti-Injunction Act, 43 Pa. Stat. Ann. §§ 206a-206r. Moreover, even if the Act did not apply here, the FOP’s claim for injunctive relief is unavailing because the FOP has not, and simply cannot, satisfy the necessary prerequisites for equitable injunctive relief. Case ID: 170802516 Control No.: 085314 For the reasons further described below, this Court should deny the FOP’s application for injunctive relief. II. Counter-Statement of the Questions Involved 1. Should an injunction be issued when the legal dispute raised is covered by the Labor Anti-Injunction Act, and the FOP’s application does not strictly comply with the Act’s requirements, including the essential prerequisites? Suggested answer: 2. No. Should an injunction be issued pursuant to the Court’s equitable powers when the FOP cannot satisfy the required prerequisites for an injunctive relief? Suggested answer: III. No. Statement of Facts The FOP’s request for injunctive relief to bar the Philadelphia Police Department from enforcing its policy of releasing the names of shooting officers within 72 hours of an officerinvolved shooting (“OIS”) is particularly strange, given that the policy has been in effect for over two years, A. The Department of Justice’s Collaborative Reform Initiative Report Recommends Release of the Names of Officers Involved in Shootings Within 72 Hours of the Incident. The underpinnings for the challenged policy can be traced back to a spike in officer involved shootings starting a decade ago. In particular, between 2007 and 2014, there were 394 OISs that wounded or killed individuals in the Philadelphia Police Department, with an annual average of 49. George Fachner & Steven Carter, An Assessment of Deadly Force in the Philadelphia Police Department 2 (Collaborative Reform Initiative, Washington, DC: Office of Community Oriented Policing Services, U.S. Department of Justice) (2015) (“DOJ Report”), attached as Exhibit A. Then-Police Commissioner Charles Ramsey requested technical assistance 2 Case ID: 170802516 Control No.: 085314 from the U.S. Department of Justice Office of Community Oriented Policing Services (COPS) as part of the Collaborative Reform Initiative. Affidavit of Brian Abernathy at ¶ 16, attached as Exhibit B. The Department and COPS agreed that COPS would use national standards, best practices, and community expectations to review and reform the Department’s deadly force protocols, practices, and incidents in the hope of reducing these incidents and fostering a stronger relationship with the community. Id. In 2015, after an extensive review, COPS issued a report titled, “An Assessment of Deadly Force in the Philadelphia Police Department.” See, generally, Ex. A. The COPS Collaborative Reform team reviewed trends and patterns in OIS’s, the Department’s use of force policies, its basic recruit training, its in-service training, its investigation protocols, the use of deadly force, and whether there was any external oversight or transparency in the Department’s processes and practices. Id. at 13-16. As part of its process, the Collaborative Reform team conducted interviews, focus groups, and meetings with Department members and community stakeholders. Id. The report made 48 separate factual findings with respect to the topics investigated and offered 91 separate recommendations to address the issues identified by the findings. See id. at Appx. A. The report specifically found that “[d]istrust in the ability of the PPD to investigate itself pervades segments of the community. Past and present scandals, high-profile OIS incidents, and a lack of transparency in investigative outcomes help cement this distrust.” Id. at 122 (Finding 47). As a result, the report recommended that the Department “establish a policy stating the police commissioner or designee will hold a press conference on an OIS incident within 72 hours of the incident.” Id. (Recommendation 47.1). At the press conference, the report explained, the 3 Case ID: 170802516 Control No.: 085314 Department should share “basic facts and circumstances of the incident known at the time as collected and confirmed by investigators.” Id. Notably, at approximately the same time that COPS was engaged in its independent and extensive review of the Police Department’s use of force and OIS’s, President Obama convened a Task Force on 21st Century Policing that looked at many of the same issues. That Task Force consisted of leading experts on law enforcement and was co-chaired by then-Commissioner Ramsey. The task force published a report of best practices that it recommended law enforcement agencies across the country adopt. See President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing 1 (Washington, DC: Office of Community Oriented Policing Services) (2015), attached as Exhibit C. Notably, the final report recommended that “[l]aw enforcement agencies should establish a culture of transparency and accountability in order to build public trust and legitimacy. This will help ensure public decision making is understood and in accord with stated policy.” Id. at 12 (Recommendation 1.3). It specifically recommended, as an “action item,” that, “[w]hen serious incidents occur, including those involving alleged police misconduct, agencies should communicate with citizens and the media swiftly, openly, and neutrally, respecting areas where the law requires confidentiality.” Id. at 13 (Action Item 1.3.2). 1 B. The Police Department Revises and Re-Issues Its Use of Force Policies. In response to the DOJ Report’s recommendations, the Police Department revised its various use of force directives, which had been contained in Directives 10 and 22, and their appendices. On May 29, 2015, the Department’s Research and Planning Unit forwarded to the Although neither report specified that names should be released, “officials involved said that the intent of both reports is that departments disclose them.” John Sullivan, et al., In fatal shootings by police, 1 in 5 officers’ names go undisclosed, The Wash. Post, Apr. 1, 2016, at 2, attached as Exhibit D. 1 4 Case ID: 170802516 Control No.: 085314 FOP, via electronic mail, four revised directives: Directive 10, Directive 22, Directive 160, and Directive 161. Joint Stipulations at ¶ 2, attached as Exhibit E. 2 Four days later, the FOP filed an unfair labor practice, docketed as PF-C-15-42-E, which challenged many of the provisions in Directive 10.1. Id. at ¶ 3. The Department decided to submit the directives to further review, and the versions forwarded on May 29th were not published. Id. at ¶ 4. On July 2, 2015, on behalf of then-Commissioner Ramsey, Lt. Kevin Long, sent via email a protocol for releasing the names of officers involved in shootings to FOP President John McNesby and FOP Vice President John McGrody. Id. at ¶ 5. The FOP filed an unfair labor practice charge (PF-C-15-53-E), which specifically challenged the protocol as a unilateral imposition of a policy without bargaining, six days later. Id. at ¶ 6. On September 18, 2015, after providing copies to the FOP, the Police Department published Directive 10.1 (former Directive 10, revised), 10.2 (former Directive 22, revised), 10.3 (former Directive 160), and 10.4 (former Directive 161). Id. at ¶ 7-8; see also Ex. 1 to FOP Complaint. Directive 10.1 was reissued on February 10, 2017; section 9, which addresses the release of information in connection with OIS, is substantially similar to the September 18, 2015 version. Directive 10.1 (2/10/2017), attached as Exhibit F. The two unfair labor practice complaints (PF-C-15-42-E and PF-C-15-53-E) were consolidated, and, on September 26, 2016, the FOP presented its case to the Board. The City began its case, but the hearing was continued until March 15, 2017; that hearing date was continued because of inclement weather conditions. The parties then jointly requested that the matter be continued pending the resolution of interest arbitration hearings, which concluded on July 31, 2017 (an award issued on August 15, 2017). See Letter from John Pozniak, Esq., Hearing The parties jointly stipulated to these facts at the first day of hearings for the two unfair labor practice charges filed by the FOP and consolidated before the Board: PF-C-15-42-E and PF-C-15-53-E. 2 5 Case ID: 170802516 Control No.: 085314 Examiner, to Cara E. Leheny, Esq. & Stephen J. Holroyd, Esq., dated Mar. 22, 2017, attached as Exhibit G. C. Directive 10.1’s Protocol for Releasing an Officer’s Name, Including a Threat Assessment. Directive 10.1 covers many issues related to the use of lethal force, including prohibitions on certain conduct and investigative protocols. It also includes a protocol governing the release of names of officers involved in shootings. See Ex. F at § 9, 10.1-19 – 10.1-21. When an officer is involved in a shooting, the involved officer’s commanding officer will arrive on the scene, typically within an hour. Affidavit of Sekou Kinebrew, at ¶ 5, attached as Exhibit H. The Police Commissioner is also briefed, as soon as possible. Id. at ¶ 6. Because the media routinely show up at the site of an OIS, the Commissioner or the Public Information Officer gives a brief explanation of what happened, along with the medical status of any individuals involved. Although the Department may disclose, at that initial briefing, the gender, years of service, and district assignment of the officer(s) involved, no personally identifying information is released at that time. Id. at ¶ 8. Within 24 hours of an OIS, two concurrent, internal Department investigations begin. The Officer Involved Shooting Investigation Unit conducts a criminal investigation regarding the incident, including the officer’s discharge, while the Department’s Internal Affairs Bureau investigates if any Departmental violations occurred. Id. at ¶ 9. The Officer Involved Shooting Investigation Unit’s initial summary is typically sent to the Public Information Officer within 24 hours. Id. at ¶ 10. Before an officer’s name is released pursuant to Directive 10.1, the Police Department’s Criminal Intelligence Unit, in conjunction with the Delaware Valley Intelligence Center’s Social Media Support Team performs a threat assessment. The Criminal Intelligence Unit searches for 6 Case ID: 170802516 Control No.: 085314 any threats made against not just the officer[s] involved in the shooting, but also against officers in the district where the shooting occurred, and against police officers in general, to determine whether releasing the involved officer’s name poses a threat to that officer. Id. at ¶¶ 11-12. These units also contact the affected member to discuss the ways that the officer(s) can minimize the amount of personal information posted online and the steps that the officers can take to protect themselves from identity theft. Ex. F at §§ 9(C) & (D); see also Ex. H at ¶ 13. That assessment is forwarded to the First Deputy Commissioner of Field Operations, who will review it with the involved officer(s) and their commanding officer. The Department offers a security detail at the officer’s residence following the press conference/release. If the officer lives outside the City, the Department works with the affected jurisdiction to provide coverage. The officer has the final decision as to whether a security detail will be implemented. Ex. F at §9(C)(1)(2) & (4). The Department remains in communication with the affected officer(s); if at any time they feel their safety is compromised, the officers can request a security detail to protect their home and family members. Ex. H at ¶ 16. Additionally, the officer(s)’ home address is entered into the Computer Assisted Dispatch program, and any calls from help from that location will be given Priority 1 status. Ex. F at § 9(C)(3). It is only after these exhaustive efforts that the Department issues a statement, sometimes accompanied by a press conference, releasing the officer’s name to the public. Ex. H at ¶ 15. Since implementation of this policy, no name has been released until at least 72 hours after the shooting. Id. D. The Release of Officer Ryan Pownall’s Name. On Thursday, June 8, 2017, at approximately 6:40 p.m., Officer Ryan Pownall shot and killed David Jones. Mr. Jones had been operating a dirt bike in a reckless manner, and he was 7 Case ID: 170802516 Control No.: 085314 carrying a gun. When Officer Pownall directed him not to touch the gun (a loaded semi-automatic pistol), a struggle ensued. Officer Pownall attempted to discharge his weapon, but the round did not fire. As the officer cleared the unfired round, Mr. Jones began to run away, and Officer Pownall fired three shots, striking Mr. Jones, who was pronounced dead at the hospital. Philadelphia Police Department, OIS #17-17 (June 8, 2017), https://www.phillypolice.com/ois/index.html, attached as Exhibit I. Pursuant to Directive 10.1, the Department conducted a threat assessment, including discussions with Officer Pownall regarding appropriate security measures, before releasing his name on Monday, June 12, 2017. Robert Moran, Police identify officer in fatal shooting of armed man, Philly.com, June 12, 2017, attached as Exhibit J. In the month following the shooting, the Police Department stationed a police car at Officer Pownall’s home on a 24/7 basis. Ex. H at ¶ 17. The Department’s officers also provided protection, by sending Department vehicles on an hourly basis, to his children’s day care, his mother’s home, his father’s home, and his sister’s home. Id. A month after the shooting, a Department representative spoke with Officer Pownall, and they jointly determined that there were no ongoing threats to his or his family’s safety. Id. at ¶ 18. Nonetheless, the Department continued to monitor Officer Pownall’s home on an hourly basis. Id. at ¶ 19. The Department also placed a pole camera directly outside of the house, and an officer monitors the video feed at all times. Id. at ¶ 20. On or about August 24, 2017, a private individual published Officer Pownall’s home address online. Id. at ¶ 21. Approximately 10 protestors appeared outside of his home that evening. The Department’s response was robust -- at least a dozen police officers and a Department helicopter responded to the scene, and the officers formed a barrier between the 8 Case ID: 170802516 Control No.: 085314 protestors and Officer Pownall’s home. 3 Id. After the protest, the Department returned the 24/7 protection detail to Officer Pownall’s home. Id. at ¶ 22. E. The Police Department’s History of Releasing Names of Officers Involved in Shootings Even before Directive 10.1 became effective in September of 2015, the Police Department released the names of officers in OIS incidents, particularly (but not always) if the officers themselves were wounded. These releases often occurred on the same day, or within 24 hours’, of the incidents: • On March 13, 2011, Officers Richard Nicoletti and Matthew McCarthy responded to a radio call of a “suicidal male armed with a knife.” During a brief struggle, Officer Nicoletti’s firearm discharged, striking Nicoletti in the chest. Officer McCarthy shot and killed the individual. Both of their names were released to the press on the day of the incident. • On August 19, 2014, Officer Stephen Korpalski and fellow officers responded to a radio call for a person with a gun. Officer Korpalski and his partner, who were in full uniform and in a marked vehicle, attempted to stop the suspect; the suspect fired at both officers, grazing Officer Korpalski in the head. Officer Korpalski, his partner, and arriving officers returned fire, and the suspect was prounced dead at the hospital. Officer Korpalski’s name was released on the same day. • On April 23, 2015, Officer Daniel Kostick, while conducting a narcotics investigation, was shot by a suspect, wounding the officer in the right arm. Officer Kostick returned At least one journalist reported approximately three dozen officers, a SWAT team, and a police helicopter responded, forming a line outside Pownall’s home during the approximately 90-minute protest. Claire Sakso, Activists protest at home of cop who shot David Jones, Phila. Mag., Aug. 25, 2017, attached as Exhibit K. 3 9 Case ID: 170802516 Control No.: 085314 fire, striking the suspect’s right arm. Officer Kostick’s name was released the following day, April 24th. • On June 4, 2015, Detective Mark Flacco, while off-duty, shot and killed a suspect who was robbing a local restaurant at gunpoint. The suspect died at the scene. Detective Flacco was identified by unknown police sources, and the Daily News ran a feature article on the incident the next day, in which FOP President John McNesby and thenCommissioner Charles Ramsey were quoted. See Press Releases and News Article, attached as Exhibit L. 4 Since July 2, 2015, when the Department first released officers’ names, 70 names have been released in connection with 58 OIS incidents. Ex. H at ¶ 23. Other than the lawful protest outside Officer Pownall’s home over two months after his name was released, there have been no reported issues or threats involving the 70 officers whose names have been released. See Ex. B at ¶ 32. IV. Argument Though the FOP has petitioned the Court under its equitable powers, the Pennsylvania Labor Anti-Injunction Act, 43 Pa. Stat. Ann. §§ 206a-206r, bars the Court from using those powers to issue the remedy requested. That Act prohibits the issuance of injunctions in “labor disputes,” except in strict accordance with the Act, unless the issue falls within one of four exceptions, in which case the Court may exercise its equitable powers. Here, the FOP’s application does not fall within any of the exceptions, so it must strictly comply with the Act and its five essential prerequisites. Even if the application falls within the Court’s equitable powers, the This exhibit was also introduced as evidence during the first day of hearings (September 26, 2016) before the Pennsylvania Labor Relations Board. 4 10 Case ID: 170802516 Control No.: 085314 application fails to satisfy even one of the six required prerequisites. Therefore, under any analysis employed by the Court, the application must be denied. A. The Court is Without Jurisdiction to Enter an Injunction Except in Strict Conformity with the Labor Anti-Injunction Act The Labor Anti-Injunction Act prescribes the requirements that a petitioner must meet in order to obtain an injunction in a “labor dispute” covered by the Act. Id. at § 206d. 5 The Act explicitly states that is does not apply to four kinds of legal disputes (the “exceptions”). If the “labor dispute” falls within one of the exceptions, the Court is not bound by the more stringent requirements of the Act and can issue an injunction in accordance with the common law and its equitable powers. If, however, the “labor dispute” does not fall within one of these four exceptions, an injunction may not issue unless it “strictly” complies with the Act’s requirements, which are different from the common law. None of the exceptions are present in this case, and the FOP’s application does not strictly comply with the Act. 1. The pending application for a temporary restraining order does not fall within any of the four exceptions to the Act’s general prohibition on issuing injunctions unless in strict conformity with the Act. The Act does permit a court to enter an injunction in one of the four following circumstances: (a) there is a “labor dispute,” which is the result of a breach or violation of, or which tends to procure the breach or violation of, a collective bargaining agreement; 5 The Act provides: No court of this Commonwealth shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case included within this act, except in strict conformity with the provisions of this act, nor shall any such restraining order or temporary or permanent injunction be issued contrary to the public policy declared in this act. 43 Pa. Stat. Ann. § 206d. 11 Case ID: 170802516 Control No.: 085314 (b) where a union’s officers, agents, representatives, or employees engages in conduct to coerce an employer to compel or require its employees to join a particular union when a majority of employees have not joined a labor organization, or where two or more unions are competing for the employees; (c) where a person, association, employee, or labor organization (or its agents, representatives, employees, or officers) engages in a course of conduct intended or calculated to coerce an employer to commit a violation of the Pennsylvania Labor Relations Act or the National Labor Relations Act; or (d) where, during the course of a “labor dispute,” a union (or its agents, representatives, employees or officers), or an employee or employees “seize, hold, damage, or destroy the plant, equipment, machinery, or other property of the employer with the intention of compelling the employer to accede to any demands, conditions, or terms of employment, or for collective bargaining.” Id. at § 206d. There can be no dispute that the exceptions as described in (b)–(d) are not present in the instant case, leaving only the exception described in (a), which, also, is not present. Under the Act, a “labor dispute” includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment or concerning employment relations or any other controversy arising out of the respective interests of employer and employe, regardless of whether or not the disputants stand in the proximate relation of employer and employe, and regardless of whether or not the employes are on strike with the employer. Id. at § 206c. Although the FOP’s unfair labor practice charges are controversies “concerning terms or conditions of employment,” they do not arise out of the parties’ collective bargaining agreement 12 Case ID: 170802516 Control No.: 085314 and the dispute does not tend to procure a breach of that agreement. Consequently, this is not a “labor dispute” as contemplated by section 206d(a). In its moving papers, the FOP did not cite to any collective bargaining provision as governing the release of officers’ names, and, in chambers, counsel acknowledged to the Court that this dispute does not arise from a violation of the parties’ contract. In the absence of a “labor dispute” arising out of the parties’ collective bargaining agreement, the Court is without jurisdiction to issue the injunction, except in strict accordance with the Act. 2. The Act’s requirements for issuance of an injunction differ from those required by common law. The standards for issuing an injunction under the Act differ from those that exist at common law. 43 Pa. Stat. Ann. § 206i. Under the Act, the FOP must establish, and the Court must specifically find, that (1) unlawful acts have been threatened and will be committed, or have been and will continue unless an injunction issues; (2) the complainant’s property will sustain substantial and irreparable injury, (3) greater injury will be inflicted upon the complainant by the denial of relief than will be inflicted upon labor by granting relief, (4) there exists no adequate remedy at law; and (5) the public officers (e.g., police) charged with the duty to protect complainant’s property are unable to furnish adequate protection. See Phar-Mor, Inc. v. United Food and Commercial Workers Union Local 1776, AFL-CIO, CLC, 541 Pa. 49, 52 (1995) (opinion in support of affirmance); see also 43 Pa. Stat. Ann. §206i(a)(c) & (e)-(f). Additionally, the Court may not enjoin any acts specifically cited in section 6 of the 13 Case ID: 170802516 Control No.: 085314 Act. 43 Pa. Stat. Ann. § 206i(d) (listing variety of specific acts related to collective bargaining process, including organization of employees and strikes and picketing). The Court must make specific findings of fact with respect to each factor, and only after holding an evidentiary hearing; affidavits in support of the complaint are not admissible evidence. Id. at 43 Pa. Stat. Ann. § 206i. Further, the FOP must post a bond sufficient to compensate the City “for any loss, expense or damage caused” by the improper issuance of an injunction, including “all reasonable costs (together with a reasonable attorney’s fee . . . .” Id. at § 206j. If the injunction is denied, the City must be awarded reasonable costs and expenses of defending the suit, along with a reasonable counsel’s fee. Id. at § 206q. Finally, a temporary restraining order expires after 10 days. Id. at § 206p. 3. The FOP’s application does not satisfy the Act’s prerequisites. For purposes of this response, the City concedes that the FOP’s application does not attempt to enjoin any conduct specified by section 6 of the Act. But it cannot meet the other prerequisites, and it must do so in order for injunctive relief to issue. See Phar-Mor, 541 Pa. at 56. a. No unlawful acts have been threatened or committed. Lawful activities cannot form the basis of an injunction. The only activity that the FOP has alleged has occurred in response to the Department’s release of an officer’s name is the protest outside Officer Pownall’s home on August 24, 2017. The union has not established that the protest was unlawful; no arrests were made and no violence was committed. Although the protest was no doubt unpleasant for Officer Pownall and his family, that discomfort is not sufficient to convert the protest into unlawful activity. Further, the FOP has not pointed to any threatened unlawful activity. Without such evidence, the FOP has not met its burden, and the Court cannot issue an injunction. 14 Case ID: 170802516 Control No.: 085314 b. There is no evidence of substantial and irreparable injury. The Labor Anti-Injunction Act only permits injunctive relief “in cases where violence or threat of harm to people or property is imminent.” Phar-Mor, Inc. v. United Food and Commercial Workers Union Local 1776, AFL-CIO, CLC, 429 Pa. Super. 393, 400 (1993), a’ffd, 541 Pa. 49 (1995). Here, despite the discomfort occasioned by the August 24th protest, there has been no violence and there is no imminent threat of harm to people or property. Phar-Mor, 541 Pa. at 56 (company’s “discomfort” that store’s condition fell below customary maintenance standard neither substantial nor irreparable injury). Thus, an injunction cannot issue. c. Greater injury will be caused to the City by issuance of the injunction than will be suffered by the FOP if it is denied. The FOP has not been identified any harm caused by the policy to release names, other than the lawful protest that occurred outside of Officer Pownall’s home, and vague allegations that FOP members and their families are jeopardized. Despite the union’s contention that the danger is neither theoretical nor speculative, it is exactly that. Over the last two years, 70 names have been released, and the only incident that the FOP can cite is a lawful protest outside Officer Pownall’s home that did not result in any arrests. The harm to the City if the injunction is issued, on the other hand, is real, immediate, and enormous. The Department’s policy of releasing names when there is an OIS is critical to its interest in improving relations with the communities it serves, building trust with City residents by being transparent when force is used in their name, and de-escalating tensions when an OIS occurs. Police departments nationwide are grappling with the consequences of appearing secretive when an OIS occurs, especially in high-profile shootings. In addition to peaceful protests, demonstrations and marches, municipalities have experienced violence and riots. In this volatile 15 Case ID: 170802516 Control No.: 085314 environment, it is critical that the Police Department be given every opportunity to strengthen already-existing community bonds and create new ones where they did not previously exist. The success of these efforts will enhance the safety of police officers, as well as the public. Police officers, like other City employees, are public servants and accountable to it. Unlike most City employees, however, they have the ability and authority to exercise force—including lethal force—if necessary. This awesome responsibility is exercised prudently by the great majority of PPD officers, but, in light of national trends and fears, the public is not always cognizant of that fact. It is understandable that the use of lethal or potentially lethal force, however justified, often results in increased tensions between the affected community and the officers who protect them. Sharing information about shootings as soon as practicable, including who was involved, is one way to educate those communities regarding the dangers and difficult decisions that officers face every day, as well as why such force may have been necessary in the specific case. It also helps the public understand the Department’s response to any particular use of force, which, in turn, should help to decrease skepticism that the Police Department, and, by extension, the City, does not take these incidents seriously. Transparency about these incidents is crucial, particularly when social media facilitates the broad and rapid dissemination of information (including audio and visual data) of these incidents, often within hours of their taking place. In view of the many ways that the identity of an officer can be released—such as eyewitnesses, video recordings, lawsuits, etc.—there can be no guarantee of an officer’s anonymity, but, if the Department is perceived as stonewalling the public, there will be increased distrust and skepticism, all of which impacts the Department’s operations, and its officers’ safety. In the last two years, the Police Department has successfully managed many high-profile events, such as the Democratic National Convention, as well as multiple marches and protests 16 Case ID: 170802516 Control No.: 085314 regarding police shootings and political issues. Any one of these events could easily have become contentious or violent if police officers had not responded professionally and if the Department had not worked so hard on building or rebuilding relationships and increasing trust. The City and the Department are justifiably proud of the absence of any major public disturbances, and one cornerstone of these efforts is transparency regarding OIS incidents. Issuance of an injunction will significantly harm the City’s and Department’s efforts, and, therefore, the FOP’s application should be denied. d. There is adequate police protection available. Further, where there is no evidence that local law enforcement cannot provide sufficient protection to the complainant, an injunction may not issue. Solvent Machinery & Filter Sys., Inc. v. Teamsters Local No. 115, 343 Pa. Super. 505, 509 (1985); see also Phar-Mor, 429 Pa. Super. at 401. The Solvent Machinery court held that, although the company did provide some evidence of property damage while it was picketed by the union, there was no evidence to suggest that “events taking place [] were of such magnitude that the local police could not handle the situation.” 343 Pa. Super. at 509. Here, the union has failed to provide any evidence that the Philadelphia Police Department cannot adequately protect its employees if their names are released pursuant to Directive 10.1. In fact, the Police Department conducts an initial threat assessment before any name is released and counsels the affected officer(s) concerning their social media profile. The Department will provide a detail to guard the officer(s)’ home(s), although the final decision is left to the officer(s). In Officer Pownall’s case, the Department provided a round-the-clock detail outside of his home for the first month and only discontinued it after consultation with the officer. Additionally, a constantly monitored camera was mounted a pole directly facing his home. Even after the detail ended, the Department monitored his home on an hourly basis. After Officer 17 Case ID: 170802516 Control No.: 085314 Pownall’s address was released on line and the protestors appeared at his house, the Department reinstated the detail. Because there is adequate police protection available to Department officers whose names are released, and the FOP has failed to present any evidence that its members cannot protect their own, the application fails and the injunction may not be issued. e. The FOP has an adequate remedy at law. No injunction can issue where there is an adequate remedy at law, which includes the filing of an unfair labor practice charge. In Phar-Mor, the employer sought to enjoin the union’s distribution of leaflets and solicitation of its employees, but it had already filed a complaint with the National Labor Relations Board that the union was engaging in an unfair labor practice. The court found that this was an adequate remedy at law because the NLRB has exclusive jurisdiction over unfair labor practices, just as the PLRB has over similar state claims, divesting the court of the power to issue an injunction. 423 Pa. Super. at 402. Because the FOP has an adequate remedy at law and cannot satisfy all of the prerequisites for an injunction under the Labor Anti-Injunction Act, its application must be denied. B. Even if the Court Has Jurisdiction to Enter an Injunction Without Reference to the Labor Anti-Injunction Act, the FOP Has Not Satisfied All of the Prerequisites, so an Injunction May Not Issue. Even if the Court has authority under its equitable powers to issue an injunction without satisfying the prerequisites of the Labor Anti-Injunction Act, the FOP has not met its burden to support an issuance of an injunction under Pennsylvania Rule of Civil Procedure 1531. Every one of the prerequisites must be satisfied, or an injunction may not be issued. County of Allegheny v. Commonwealth, 518 Pa. 556, 560) (1988). The prerequisites are: 1. the injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages; 18 Case ID: 170802516 Control No.: 085314 2. a preliminary injunction will not adversely affect the public interest; 3. a preliminary injunction is reasonably suited to abate the offending activity; 4. the activity sought to be restrained is actionable, the petitioner’s right to relief is clear, and the wrong is manifest; in other words, the petitioner is likely to prevail on the merits; 5. a preliminary injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct; and 6. greater injury would result from refusing an injunction than from granting it, and, concomitantly, the issuance of an injunction will not substantially harm other interested parties in the proceedings. Summit Town Centre, Inc. v. Shoe Show of Rocky Mount, Inc., 573 Pa. 637, 646-47 (2003). It is notable that the FOP’s application addressed only three of the six prerequisites. On that basis alone, it must be denied. Further, the FOP must file a bond, in a fixed amount and with security approved by the court, for the purpose of reimbursing the City for all damages sustained by reason of an improperly granted injunction, including all legally taxable costs and fees. Pa. R. Civ. P. 1531(b). 1. The FOP cannot establish that an injunction is necessary to prevent an immediate and irreparable harm. The FOP cannot show that an injunction is necessary to prevent any immediate harm. A party seeking a preliminary injunction must show that the injunction is necessary to prevent immediate and irreparable harm that cannot adequately be compensated by damages. Greenmoor, Inc. v. Burchick Const. Co., Inc., 908 A.2d 310, 315 (Pa. Super. 2006). In order to meet this burden, a plaintiff must put forward “concrete evidence” demonstrating “actual proof of irreparable harm.” Kessler v. Broder, 851 A.2d 944, 951 (Pa. Super.) (citing Summit Town 19 Case ID: 170802516 Control No.: 085314 Centre, at 573 at 649). The plaintiff's claimed “irreparable harm” cannot be based solely on speculation and hypothesis. Id. Here, the FOP has alleged two separate harms resulting from Directive 10.1’s information release protocol. First, it claims that the release of information constitutes a threat to the safety of officers. Second, it claims that implementation of the directive, without bargaining, has somehow irreparably harmed the FOP’s bargaining position, though it provides no details to support that claim First, with respect to the safety of the officers, the FOP points to anonymous threats and an unpleasant rally that occurred outside Officer Ryan Pownall’s home. Since July of 2015 (when the Department first began releasing names in accordance with the protocol set forth in Directive 10.1), the Police Department has released the identities of 70 officers who were involved in 58 officer involved shootings without incident until the August 24th protest. Although Officer Pownall, in his declaration, attested that he received death threats from anonymous callers, he did not report these threats to the Police Department, and he and his family were provided with roundthe-clock protection in the month after the release of the names. After the lawful protest, which did not result in any arrests, the Department reinstated the 24/7 police protection. Notably, Officer Pownall’s name was released on June 12, 2017. The protest at his house did not occur until August 24, 2017. Even in the case of Officer Pownall, the alleged harm was not immediate, and, in fact, occurred more than two months after the release of his name. While the protest at his house was certainly unpleasant, there was a heavy police presence at the protest to protect Officer Pownall and his family. Further, there is no evidence that Officer Pownall or the FOP sought a preliminary injunction against the protest itself. There is also no evidence that the threats or protests against Officer Pownall or ongoing or will recur in the future. Because there are other options available to cure the harm to Officer Pownall, such as an injunction preventing any 20 Case ID: 170802516 Control No.: 085314 potential unlawful protests or the arrest of anyone engaging in unlawful activity, an injunction preventing the Police Department from releasing the names of officers involved in shootings is not necessary to prevent the harm at issue. Additionally, the FOP has failed to produce any evidence that the safety of any of the other officers whose names have been released suffered any harm whatsoever. The FOP also has not produced any evidence whatsoever that the release of identities in the future will pose any threat to the safety of any officer or the FOP. The FOP as much as admitted that it has no evidence of any other threats in its August 25, 2017 press release, authored by President John McNesby, in which he explained that the FOP sought injunctive relief “due to the events of last night [August 24, 2017] in which urban terrorists showed up at an officer’s residence.” See Press Release, Aug. 25, 2017, (https://www.facebook.com/273292439472058/photos/pcb.1141290889338871/114129018267227 5/?type=3&theater), attached as Exhibit M. Any allegations of future harm are based solely on speculation, and as such, cannot meet the burden of showing that the injunction is necessary to prevent immediate and irreparable harm. 6 Moreover, the Police Department places a high priority on the safety of its officers. Prior to releasing the names of officers involved in shootings, the Department monitors open sourced social media for any direct or implied threats against the officer. If there was a direct threat against the officer, the Department would not release the officer’s name. Second, the FOP has alleged that the Directive irreparably harmed the FOP’s bargaining position. The FOP, however, never attempted to bargain the release of names. It did not, for example, file a demand arbitration. See Affidavit of Monica Marchetti-Brock, Director of the Mayor’s Office of Labor Relations, at ¶ 11, attached as Exhibit N. Although the parties’ contract And that speculation is based on one isolated incident, where no actual harm occurred, and when there has been no identified harm to any of the 69 other officers whose names have been released. 6 21 Case ID: 170802516 Control No.: 085314 expired on June 30, 2017, the FOP did not submit any proposals to change the City’s policy regarding the release of names. Id. at ¶ 9. Without any specific information about how the FOP’s bargaining position has been harmed, its conclusory allegation that its bargaining position has been harmed is insufficient to show that there will be any immediate and irreparable injury caused by the directive. Further, the FOP has not shown how there will be any irreparable harm if the PLRB determines that the policy was implemented unlawfully, as the parties would then be required to bargain over the issue. In summary, the FOP has not produced any concrete evidence that Directive 10.1 has or will cause any immediate and irreparable harm. Because it cannot meet its burden under the first element of a preliminary injunction, the Court must deny the request for a preliminary injunction. 2. Granting the injunction will adversely affect the public interest. There can be no question that issuing the injunction will adversely impact the public’s interest in transparency and its concern regarding law enforcement’s use of lethal force. There is heightened public interest around the country in the identity of police officers who use lethal, or potentially lethal, force in the public’s name. In Pennsylvania, the General Assembly is considering legislation on this issue, and its bill is attracting significant attention. a. Nationwide, there is significant public interest in favor of releasing police officers’ names when they are involved in an OIS, and jurisdictions are responding accordingly. The public’s interest in transparency when it comes to a police officer’s use of force is not confined to Philadelphia. Over the past few years, and with increasing frequency and speed, law enforcement agencies around the country have released the names of officers involved in shootings: 2012 22 Case ID: 170802516 Control No.: 085314 • Oxnard, CA. – Oxnard Police released names of three officers involved in fatal shooting of a man approximately 3.5 months earlier (https://www.yahoo.com/news/oxnard-police-releasenames-officers-044000158.html) 2013 • Columbus, OH – 1 day after a non-fatal shooting, Columbus Police Officials released name of officer involved (http://www.10tv.com/article/police-release-name-officer-involved-shooting) • Tulsa, OK – Police released name of officer 2 days after shooting in Tulsa apartment complex that left one dead (http://ktul.com/archive/officer-involved-shooting-leaves-one-dead-01-122016) • Fort Wayne, IN - Fort Wayne Police Department released name of officer on same day as fatal shooting (https://www.youtube.com/watch?v=oQngMCI6LlI) 2016 • Thomasville, NC – Police released identity of officer involved in shooting 3 days after shooting (http://www.hpenews.com/news/police-release-name-of-officer-involved-inshooting/article_9d7603d4-f4fb-11e5-ac65-5b16e40b38c1.html) • Tulsa, OK – 1 day after fatal shooting, police released name of officer (http://www.tulsaworld.com/news/crimewatch/update-tulsa-police-release-name-of-officer-mankilled-in/article_3dc1d796-4c8b-11e6-9187-2788d9f21ddc.html) • Little Rock, AK – Little Rock Police Department identified officer who killed armed man 1 day after incident (http://www.baxterbulletin.com/story/news/2016/10/26/little-rock-policerelease-name-officer-fatal-shooting/92796846/?cookies=&from=global) 23 Case ID: 170802516 Control No.: 085314 • Durham, NC – Police released names of officers involved in fatal shooting 1 day after shooting (http://www.witn.com/content/news/Durham-police-officer-involved-inshooting402493605.html) • Ohio State University – Authorities released name of officer who shot and killed an attacker within hours of the incident (https://www.washingtonpost.com/news/truecrime/wp/2016/11/30/name-of-ohio-state-officer-who-shot-attacker-released-almostimmediately-is-that-right/?utm_term=.f6f68b49a2ea) • Hudson, OH – 4 days after foot chase and fatal shooting of college student, Hudson Police released officer’s name and video footage (http://www.news5cleveland.com/news/localnews/oh-summit/hudson-police-release-name-of-officer-involved-in-fatal-shooting-of-casewestern-student) • Fairfax County, VA – Fairfax County Board of Supervisors adopted policy to release names of officers within 10 days of critical incidents (http://annandaleva.blogspot.com/2016/12/board-ofsupervisors-establishes-police.html) 2017 • Fulton, KY – State Police released name of officer involved in deadly shooting 3 days later (http://www.wpsdlocal6.com/2017/01/19/state-police-release-name-of-officer-in-fultonkentucky-shooting/) • New Brunswick, NJ – Middlesex County judge ruled that names of police officers involved in shooting death must be released as part of Open Public Records Act request (http://www.nj.com/somerset/index.ssf/2017/02/judge_orders_release_of_use-offorce_report_in_dia.html) 24 Case ID: 170802516 Control No.: 085314 • Little Rock, AR – Little Rock Police Department released officer’s name 2 days after fatal shooting (http://katv.com/news/local/man-killed-in-officer-involved-shooting-identified-04-062017) • San Francisco, CA – 7 days after incident, video footage released at a town hall meeting of a fatal shooting (http://www.hoodline.com/2017/05/police-release-videos-name-of-officerinvolved-in-last-week-s-fatal-shooting) • Bakersfield, CA – On same day that officer fired at man during chase, police released officer’s name (http://www.bakersfield.com/news/breaking/bakersfield-police-release-name-of-officerinvolved-in-shooting-last/article_76a6bf6c-e12b-5ebf-bfa2-275465f0b21e.html) • Plant City, FL – 1 day later, Police Department released names of two officers involved in a fatal shooting (http://wfla.com/2017/07/07/police-release-names-of-officers-involved-in-fatalplant-city-shooting/) • Kent, WA – Police released names of officers involved in fatal shooting as well as videos, documents, and taped statements from investigation 24 days after incident (http://www.kentreporter.com/news/kent-police-release-officers-names-videos-documents-inpolice-shooting-of-joseph-mcdade/) • Loveland, CO – Bodycam footage of a fatal shooting released by the police 12 days after shooting (http://www.coloradoan.com/story/news/2017/07/20/loveland-police-release-footagejune-shooting/495583001/?cookies=&from=global) • Michigan, IN –3 days after incident, Indiana State Police released names of officers involved in a fatal shooting (http://whatsnewlaporte.com/2017/07/26/state-police-investigating-mc-officersshooting-at-lp-man-july-23/) 25 Case ID: 170802516 Control No.: 085314 • Eau Claire, WI - Investigators named officer involved in deadly shooting 6 days later (http://www.weau.com/content/news/UPDATE-Police-release-names-of-man-officer-in-deadlyshooting--436769003.html) • Baltimore, MD - Baltimore County Police Department released officer’s name 4 days after incident (http://baltimore.cbslocal.com/2017/08/02/names-of-officer-victim-in-shooting/) • Muskogee, OK – Muskogee Police Department released name of officer in non-fatal shooting 1 day after incident (http://www.newson6.com/story/36087972/muskogee-police-release-namesin-officer-involved-shooting) • La Crosse, WI – La Crosse police released name of officers 2 days after fatal shooting (http://www.weau.com/content/news/UPDATE-Police-release-name-in-La-Crosse-officerinvolved-shooting-440597213.html) • Green Bay, WI - State investigators released names of law enforcement officers involved in a fatal shooting 8 days after incident (http://www.greenbaypressgazette.com/story/news/2017/08/29/authorities-release-namesofficers-involved-fatal-kewaunee-county-shooting/608061001/?cookies=&from=global) • Evansville, IN - Police released body camera video and surveillance footage of fatal police shooting 1 day after shooting (http://www.courierpress.com/story/news/local/2017/08/30/policerelease-body-camera-footage-tuesday-shooting/617254001/?cookies=&from=global) • New Milford, CT – State Police released name of officer involved in fatal shooting 3 days after incident (http://www.registercitizen.com/article/RC/20170831/NEWS/170839958) (http://news.hamlethub.com/brookfield/brookfield/publicsafety/44617-state-police-releasenames-in-new-milford-police-officer-involved-shooting) 26 Case ID: 170802516 Control No.: 085314 • Kettering, OH – Kettering Police Department released dash cam footage of officer-related shooting 5 days after incident (http://wdtn.com/2017/09/01/police-to-release-video-of-officerinvolved-shooting/) It is evident from this long list that police departments around the country recognize the importance of transparency. It is also notable that many of these releases were made less than 72 hours after the incidents. b. The Pennsylvania General Assembly is preparing legislation that would permit release of officers’ names after a period of time has elapsed, and there is significant opposition to any mandated delay. In September 2015, shortly before Directive 10.1 became effective, H.B. 1538 was introduced. See H.B. 1538, Bill Information—History, attached as Exhibit O. As originally drafted, it prohibited the release of the name of any police officer involved in an OIS during the pendency of an investigation. See H.B. 1538 at § 1511(a) (deleted), as amended, attached as Exhibit P. Even after the conclusion of the investigation, the name could only be released if the officer was criminally charged or if there was no “reasonably foreseeable” risk of harm to the officer or an immediate family member. Id. at § 1511(b) (deleted). The final version of the bill permitted release of the name only if the officer was criminally charged, the investigation had concluded, at least 30 days had passed since the OIS incident, the officer consented in writing, or disclosure was made pursuant to court rules. Id. at § 1511(A)(1)-(4). The bill attracted considerable opposition. In a press release, the American Civil Liberties Union of Pennsylvania criticized it, noting that police officers are given a great deal of power, including the use of deadly force, and “[i]t is crucial that transparency is coupled with that power.” ACLU of PA denounces bill to hide information after police use force, Nov. 12, 2015, attached as Exhibit Q. The ACLU went on to say that shielding officers’ identities implies “that police officers who use force have something to hide.” Id. It argued that local officials are in the best position to 27 Case ID: 170802516 Control No.: 085314 determine whether or not an officer’s name should be released and that the bill created a policy that “actually harms police-community relations by withholding information from the public.” Id. After the bill was passed by the legislature, several Pennsylvania newspapers, including the Philadelphia Tribune and the Pittsburgh Post-Gazette, criticized the bill as “‘misguided and unnecessary’” and opined that it would “‘codify suspicion.’” Harrison Jacobs, Pennsylvania lawmakers passed a bill critics say could “fuel the flames” after police-involved deaths, Bus. Insider, Nov. 2, 2016, attached as Exhibit R. Citizen police review board representatives also criticized the bill, stating that it would “perpetuate ‘public skepticism and suspicion of government institutions.” Id. The president of the Alliance for Police Accountability in Pittsburgh stated, It’s a hypocritical bill, and it’s a bill that still putting law enforcement above the law compared to everyone else. Anyone that is investigated for a crime or thought to have committed a crime, we see them all over the news all the time. Not only do we see their names, we see their faces. Jonathan D. Silver, Police watchdog group asks Governor to carefully consider ID bill, Pitts. PostGazette, Oct. 29, 2016, attached as Exhibit S. Governor Wolf vetoed the bill a week after it was presented to him. See Ex. O. On February 6, 2017, an identical bill was introduced and referred to the House Committee on the Judiciary. See H.B. 27, attached as Exhibit T. The ACLU of Pennsylvania continues to lodge objections to the bill, noting that it promotes secrecy, impedes local decision-making, diminishes accountability and transparency, and damages community relations. See Memo to House Judiciary Committee, Feb. 6, 2017, attached as Exhibit U-1; Memo to House of Representatives, Mar. 13, 2017, attached as Exhibit U-2; and Memo to Pennsylvania Senate, June 5, 2017, attached as Exhibit U-3. In each memo, the ACLU notes that the Los Angeles Police Department and the Las Vegas Metropolitan Police Department release the names of officers involved in shootings, and the latter department also holds a press briefing within a week of the shooting, releasing video, 28 Case ID: 170802516 Control No.: 085314 photographs, 911 calls, and details about the incident. Id. The memos to the House and Senate also note that the leaders of the Fraternal Order of Police in Pittsburgh and Philadelphia were unable to name a single incident in Pennsylvania in which an officer or family member was harmed or threatened during a use-of-force investigation. Ex. U-2 at 1; Ex. U-3 at 1; see also Jonathan D. Silver, Pittsburgh FOP head backs proposal to keep cops anonymous during investigations, Pittsburgh Post-Gazette, Sept. 18, 2015, attached as Exhibit V. H.B. 27 has also garnered opposition from former state officials. Terry Mutchler, the former head of the state’s Office of Open Records, and the daughter, sister, and aunt of law enforcement officers, stated: I think legislation like this can be dangerous. A snapshot of the nation right now -whether Baltimore, Ferguson or Cleveland -- demonstrates that accountability in our police departments and in our government in general is paramount. The Supreme Court in Pennsylvania said loud and clear the right to know is designed to prohibit secrets, scrutinize actions of public officials and hold public officials accountable for their actions. This type of legislation, while very well intended, which I understand coming from a long family of cops, collides with open government. Government must be open and transparent no matter how difficult that may seem at times. Ex. V. Because the FOP cannot demonstrate that an injunction will not adversely affect the public interest, and because it is clear that there is great public interest in increased transparency and the release of officer’s names, the injunction may not be issued. 3. An injunction is not reasonably suited to abate the offending activity. The FOP cannot show that the desired injunction is reasonably suited to stop the offending activity. SEIU Healthcare Pa. v. Commonwealth of Pa., 628 Pa. 573, 584 (Pa. 2014) (citing Summit Towne Centre, 573 Pa. 637). 29 Case ID: 170802516 Control No.: 085314 The remedy the FOP seeks is overbroad. The only concrete injury it can point to is a lawful protest outside one officer’s home, over two months after his name was released. Issuing an injunction will not remedy any harm suffered by Officer Pownall. Instead, the FOP seeks to prevent speculative harm that could befall some unidentified officer at some later, unknown time. Not only is there no immediate injury to any identifiable person, the requested injunction will not remedy the speculative harm. Under the current policy, the Department assesses the risk to an officer before releasing a name, and protective details are arranged for the officer and family members. There are a host of ways, however, for names to be released that will not permit the Department to take proactive steps. Often, there are other witnesses to the shooting. Any witness to a shooting is free to disclose the name of the officer. A witness would be able to identify an officer because police officers typically wear uniforms that have their names on them. In Officer Pownall’s case, he was escorting two suspects to the police station when the shooting incident occurred. It is likely that both of those individuals were aware that Officer Pownall was involved in the shooting, and they were free to disclose his name. Any disclosure by a witness would be uncontrolled, and would deprive the Department of assessing the level of threat and what protective measures can be taken for the officers’ and officers’ family’s benefit. Additionally, recording police activity in public falls squarely within the First Amendment right of access to information. Fields v. City of Philadelphia, 862 F.3d 353, 359 (3d Circuit 2017). Any bystander to a police involved shooting has a constitutional right to film the activity. Even if no bystander is present, the shooting could be captured by surveillance cameras. The potential release of the film would disclose the officer’s identity to the public. Again, any such release— which would likely be online or to a television news organization—would not be controlled by the 30 Case ID: 170802516 Control No.: 085314 Department, and there would be no ability to evaluate the risks to the officer from the uncontrolled release or to arrange suitable protection in advance. Even if there are no witnesses or video footage, the officers’ names will be released through the ordinary processes of the legal system. For example, if the civilian that was shot by the officer survives, there will likely be criminal charges against the civilian. The civilian will likely be able to identify and disclose the officer’s name to the public if he or she desires. Additionally, the officer who shot the civilian will typically testify at a preliminary hearing in open court within 14 days of the incident. At that point, any member of the public can attend the hearing or search public dockets that would identify the officer, and the name would be made public. In addition to potential criminal proceedings, often the victim or victim’s family of an OIS will bring a civil lawsuit against the City. The names of the officers involved in the shooting will be disclosed during discovery. In summary, it is evident that an injunction preventing the Police Department from releasing police officer’s names within 72 hours of being involved in a shooting is not reasonably suited to abate the alleged offending activity. As described above, not only is the desired injunction overbroad, it is unable to abate the speculative harm because there are various ways that an officer’s identity can be released, regardless of whether the Department releases the name pursuant to Directive 10.1. 4. The FOP cannot establish that it is likely to prevail on the merits before the PLRB. In its brief, the FOP attempts to water down the standard for satisfying this prerequisite by relying on language from a 1985 Commonwealth Court decision and asserting that all it needs to do is demonstrate that its claim “raises substantial legal questions.” This formulation ignores more recent precedent. Only four years after T.W. Phillips Gas v. People’s Natural Gas Co., the FOP 31 Case ID: 170802516 Control No.: 085314 unsuccessfully sought to enjoin enforcement of Directive 55, which provided for drug screening where there is a reasonable suspicion of illegal drug use or drug abuse, or as part of a routine physical examination. Fraternal Order of Police Lodge No. 5 v. City of Philadelphia, 125 Pa. Cmwlth. 209, 210 (1989). The Court of Common Pleas refused to issue an injunction, in part because the FOP could not demonstrate a likelihood of success on the merits. Id. As the Commonwealth Court explained, a necessary prerequisite for injunctive relief is a showing that the petitioner has “a high degree of probability of success on the merits . . . .” Id. at 212 (emphasis added); see also Anglo-Am. Ins. Co. v. Molin, 547 Pa. 504, 514, 691 A.2d 929, 934 (1997) (“In order for the injunction to issue, it must be clear that [petitioners] will prevail . . . .”). a. The FOP has not shown that it is likely to succeed on the merits, as it has offered no proof that release of an officer’s name is a mandatory subject of bargaining. The parties’ collective bargaining relationship is framed by the Policemen and Firemen Collective Bargaining Act, 43 P.S. §§ 217.1-217.10 (“Act 111”), which gives police officers and firefighters, through their union, the right to bargain over the “terms and conditions of their employment, including compensation, hours, working conditions, retirement, pensions, and other benefits . . . .” Id. at § 217.1. The Pennsylvania Labor Relations Act, which is read in pari materia with Act 111, requires that public employers bargain with their employees on all mandatory subjects of bargaining, and failure to do so constitutes an unfair labor practice. City of Erie v. Pennsylvania Labor Rel. Bd., 612 Pa. 661, 677 (2011). As can be seen from Act 111’s language, “terms and conditions of employment” is a term of art; simply stating that something other than what is set forth in section 217.1 is a “term and condition” of employment is to do nothing more than assert a legal conclusion. The Commonwealth Court has explained that whether an issue is a mandatory subject of bargaining is an “important threshold determination . . . .” Plumstead Twp. v. Pennsylvania Labor Rel. Bd., 32 Case ID: 170802516 Control No.: 085314 713 A.2d 730, 733 (Pa. Commw. 1998). The FOP has cited to no authority to support is bare assertion that releasing an officer’s name is a “term and condition” of employment. Therefore, it has not satisfied its burden of demonstrating that it is likely to succeed on the merits. b. The City has no duty to bargain its managerial prerogatives, including its ability to set a “standard of service,” which is what it has done through Directive 10.1. Although Act 111 mandates that the City bargain with the FOP over terms and conditions of employment, “the General Assembly had no intention or expectation that the collective bargaining process would permit public employees to set matters of public policy or participate with their public employer in administering the public enterprise.” City of Phila. v. International Ass’n of Firefighters, Local 22 (“Local 22”), 606 Pa. 447, 471 (2010). The Commonwealth Court emphasized that “Act 111 does not remove all police regulation from the scope of a municipality's managerial decision-making process. Any regulation which might be considered essential for the proper and efficient functioning of a police force may remain subject to municipal management.” Plumstead Twp., 713 A.2d at 735. Our Supreme Court recognizes that managerial prerogatives include standards of service. Id. at 472. These prerogatives have also been recognized by our General Assembly. Public employers shall not be required to bargain over matters of inherent managerial policy, which shall include but shall not be limited to such areas of discretion or policy as the functions and programs of the public employer, standards of services, its overall budget, utilization of technology, the organizational structure and selection and direction of personnel. 43 Pa. Stat. Ann. § 1101.702. There is no set test for what constitutes a standard of service, but it is clear that, when making that determination, the Board should consider “the fact that the purpose of the public sector employer is to serve the public interest in the most efficient and effective way” and determine whether enactment of the policy furthers that objective. Council 13, Am. Fed'n of State, 33 Case ID: 170802516 Control No.: 085314 Cty. & Mun. Employees, AFL-CIO v. Com., Pa. Labor Rel. Bd., 84 Pa. Commw. 458, 463 (1984) (holding that enactment of employee code of conduct managerial prerogative); see also PSSU, Local 668 of SEIU, AFL-CIO v. Pennsylvania Labor Rel. Bd., 763 A.2d 560, 563 (Pa. Commw. 2000) (holding that public employer has “substantial interest in the professional delivery of services which substantially outweighed” impact of dress code on employees). Because the FOP has not cited to any authority that the release of a public employee’s name is a term and condition of employment, and the City has a substantial argument that its duty to be transparent with its residents is most efficiently and effectively served by Directive 10.1’s protocol, the FOP cannot demonstrate that it is likely to succeed on the merits, and the application must be denied. 5. An injunction will not restore the parties to the status quo. Directive 10.1 has been in effect since September 18, 2015, and an injunction will not restore the parties to the status quo. “The status quo to be maintained by a preliminary injunction is the last actual, peaceable and lawful non-contested status which preceded the pending controversy.” Lewis v. City of Harrisburg, 158 Pa. Commw. 318, 327, 631 A.2d 807, 812 (1993). The status of almost-two years immediately preceding the FOP’s application for an injunction is enforcement of Directive 10.1’s name release policy. And, as noted above, even before Directive 10.1 became effective, the Police Department released the names of officers involved in OIS, and the FOP never challenged this practice. Thus, enjoining the City from continuing its policy will not restore a never-existent status quo, but, rather, change the Department’s pre-existing practice. Under these circumstances, an injunction cannot be issued. 34 Case ID: 170802516 Control No.: 085314 6. Greater injury will result from issuance of the injunction than from refusing to issue it. The City relies on the argument set forth in section IV(A)(3)(c), supra. C. The FOP is Not Without Remedy, Even if this Court Declines to Issue an Injunction. This Court is not the only avenue by which the FOP can obtain relief, and, as set forth above, it is not the most appropriate. The PLRB has the authority to seek injunctive relief on behalf of a complainant. The board shall except where an employe of the Commonwealth is involved have power to petition the court of common pleas of any county wherein the unfair practice in question occurred, or wherein any person charged with the commission of any unfair practice resides or transacts business, for the enforcement of such order and for appropriate temporary relief or restraining order, and shall certify and file in the court a transcript of the entire record in the proceeding, including the pleadings and testimony upon which such order was entered and the findings and order of the board. 43 Pa. Stat. Ann. § 1101.1501 (West). The FOP has not sought such relief from the Board. V. Conclusion The FOP has failed to satisfy any of the Labor Anti-Injunction Act’s five necessary prerequisites for injunctive relief. Additionally, even if the Act does not apply, the FOP has not, and cannot, satisfy any of the six essential prerequisites necessary for injunctive relief. Accordingly, he City of Philadelphia respectfully requests that the FOP’s application be denied. Respectfully submitted, SOZI PEDRO TULANTE, CITY SOLICTOR MARCEL PRATT, LITIGATION CHAIR NICOLE S. MORRIS, CHIEF DEPUTY CITY SOLICITOR /s/ Cara E. Leheny CARA E. LEHENY, Divisional Deputy City Solicitor BENJAMIN PATCHEN, Assistant City Solicitor Date: September 8, 2017 35 Case ID: 170802516 Control No.: 085314 CERTIFICATE OF SERVICE I, Cara E. Leheny, hereby certify that I caused to be served today one copy of the foregoing City of Philadelphia’s Response to Michael G. Lutz Lodge No. 5 Fraternal Order of Police’s Application for Injunctive Relief, its Memorandum of Law in Support of Its’ Response, and a Proposed Order upon the persons and in the manner indicated below: Electronically, via the Court of Common Pleas Electronic filing system: Marc L. Gelman Jennings Sigmond, P.C. 1835 Market Street, Suite 2800 Philadelphia, PA 19103 Attorneys for Plaintiff CARA E. LEHENY Divisional Deputy City Solicitor Labor and Employment Unit 16th Floor, 1515 Arch Street Philadelphia, PA 19102-1595 Date: September 8, 2017 36 Case ID: 170802516 Control No.: 085314