By Austin Nolen
Court of Common Pleas Judge Daniel J. Anders today denied a motion by the Fraternal Order of Police Lodge 5 to prohibit the City of Philadelphia from releasing the names of officers who shoot civilians.
The motion was the latest front in a multi-year battle between Lodge 5, which represents Philadelphia police officers, and city officials
In July of 2015, after recommendations by the U.S. Department of Justice, the Police Department implemented a policy under which officers who fired their weapons would have their names released if a threat assessment determined there were no safety risks involved.
Prior to this policy change, the City named officers involved in some, but not all, shootings. In 2015, activists held multiple demonstrations to call on officials to release the name of the officer who shot Brandon Tate-Brown.
After the policy was changed, the FOP filed an unfair labor practice charge against the City with the Pennsylvania Labor Relations Board. The union alleged that officials were legally required to collectively bargain over the policy.
Pennsylvania’s Policemen and Firemen Collective Bargaining Act of 1968, also known as Act 111, requires local governments to bargain with police officers over “the terms and conditions of their employment.”
That category includes “compensation, hours, working conditions, retirement, pensions and other benefits.” The FOP alleges that the release of names is also a term or condition of employment, because it impacts officer safety.
City officials claim, on the other hand, that the policy is within their exclusive rights to manage and set overall policy for government agencies.
This dispute played out for several years before the PLRB, until August 24th, 2017, when a group of Black Lives Matter activists protested outside the home of Ryan Pownall, an officer who shot and killed a man named David Jones during a traffic stop earlier that summer. Pownall’s name had been released under the 2015 policy.
The next day, the FOP filed a lawsuit seeking a permanent injunction against officials to prevent them from releasing officer names until the PLRB makes its decision on the dispute.
Pownall was later suspended with intent to dismiss for violating police regulations during the traffic stop and shooting of David Jones, and the shooting is also being investigated for possible criminal charges by the state Office of Attorney General.
The union also filed a motion requesting a judge to stop the City from releasing officer names until the court can decide on the permanent injunction.
In court papers and in a hearing earlier today, City attorneys argued that the FOP did not meet the legal standard for either a labor injunction, which has its own legal restrictions in Pennsylvania, or a normal injunction.
According to the City, the union was not harmed by the policy because its implementation was not legally required to be collectively bargained. The attorneys also alleged that enjoining the policy would harm the public interest in transparency about police use of force.
The FOP, on the other hand, contended that the protest at Pownall’s home and death threats he received showed the damage that could be done prior to a resolution of the case. They also argued that policies affecting officer safety must be subject to collective bargaining.
However, as union attorney Marc Gelman admitted during the hearing earlier this afternoon, the FOP had no evidence that other officers had been or would be subject to threats like those made against Pownall.
Nevertheless, Gelman argued, the release of officer names does create a risk and “the City would prefer to put a nice P.R. shine on its actions than care for the safety of its employees.”
At the end of the hearing, Judge Anders denied the union’s motion for a preliminary injunction, ruling that the FOP had not shown evidence that future harm was likely and finding that prohibiting the release of officer names would harm the public interest in police transparency.
He also expressed doubt that the union would win its PLRB case, finding that they had not made a convincing argument that the policy was legally subject to collective bargaining as a term or condition of employment.
With the denial of its request for a preliminary injunction, the FOP can still seek a permanent injunction pending the closure of the PLRB case.
Union president John McNesby refused to speak with reporters after the hearing because he objected to the presence of a reporter from another publication, and another union representative was not available for comment about the FOP’s plans going forward.
The next hearing in the original PLRB case is scheduled for December 11th, but City attorneys expect that the dispute could continue for months or years after that hearing.