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Media Alerts - Lodge No. 5 of the Fraternal Order of Police v. City of Philadelphia - Third Circuit
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August 25, 2014
  Lodge No. 5 of the Fraternal Order of Police v. City of Philadelphia - Third Circuit
Headline: Police Officers can give money to PACs

Area of Law: First Amendment

Issues Presented: Whether the restriction imposed by the City Council to prevent members of the Police Department from contributing to their union's political action committee violates the First Amendment?

Brief Summary: Philadelphia City Council enacted a Home Rule Charter to combat corruption by city employees. One restriction prevents police officers from contributing to their union's political action committee. The Court found that the restrictions imposed by the city were not narrowly tailored enough to prevent the harms the government was concerned about. The ban on contributions unnecessarily abridged the associational freedoms of the officers and was held to be unconstitutional.

Significance (if any):

Extended Summary: This case centers on a Home Rule Charter enacted by the Philadelphia City Council in 1951. Concerned with widespread corruption among city employees and especially members of the police force, the Charter restricted certain political activities by city employees including preventing members of the Police Department from making contributions to their union's political action committee. The provision at issue prevents employees of the Philadelphia Police Department from making contributions for any political purpose. The members of the Police Department cannot donate to their political action committee (COPPAC) because it uses some funds for partisan political purposes. The police are the only city employees that are subject to the contribution ban.

In 2006, Philadelphia City Council passed a city bill that would allow members of the Fraternal Order of Police (FOP) to authorize payroll deductions to contribute to COPPAC. The members of the FOP would not be able to choose how this money is spent. That is left to the discretion of the FOP's executive board. The bill is still on the books but the current Mayor refuses to implement it because it is believed to be violative of the Charter ban.

There are other regulations which also attempt to insulate the police from political influence. Regulation 8 has been interpreted to forbid city employees from engaging in political activity while on duty, in uniform, or using city resources. Employees cannot use their authority for any political purpose including serving on a committee or as an officer or managing the affairs of any partisan political group. The employees can vote and belong to a political party. City employees, including police officers, can contribute time and money to non-political organizations that promote causes they care about.

The Court used the Pickering framework because the ban restricts the police officers' right to speak on matters of public concern. This balances the interest of the public employee to comment on matters of public concern and the government of promoting efficiency of the public services it performs through its employees. Because the ban prevents speech, the government has the greater burden and must show actual harm that will result because of the speech and that the regulation will stop these harms in a direct and material way. The Court found that, while there are real harms presented, the Charter ban is not an appropriately tailored means to address them. While the city failed to show that corruption is still rampant within the city government and employees, the Court exercised judicial caution because the legislation has remained essentially unchanged since the time of the corruption and the FOP provided little evidence to combat the city's concerns that lifting the ban would not cause a reversion to partiality and politicized personnel practices.

The Court found that the Charter ban failed the second part. The Court refused to defer to the legislative judgment for determining if the restriction on political activity adequately balanced the interests of the government and employees. It distinguished this case from others because the police officers wish to contribute to a political action committee which is an intermediary between donors and candidates. The police do not wish to contribute directly to a candidate or political campaign. The donors have no say in how the funds of COPPAC are distributed. The Court also found persuasive the Supreme Court's skepticism of political speech restrictions based on broad anticorruption rationales.
The Court noted that the city failed to explain how the contribution ban directly mitigated the concern of corruption and the patronage system. The Court also found unpersuasive any reasons the city gave for the ban to apply only to the police including that the ban is a part of an integral and carefully calibrated scheme to insulate the police from all political activity and that to end it would result in a parade of horribles. The Court found that the regulation was under inclusive because applies only to individual officers and does nothing to prevent the stated harms of the FOP's practice of handing out courtesy cards and endorsing and financing local candidates.

The Court did find merit in the city's concern to protect officers from politically motivated practices but found that the problem is not with the officer's ability to make contributions but with the way the FOP wants to get donations by taking it directly from officer's pay. The concern is that this becomes a mark of an officer's merit and could lead to politically motivated hiring and advancement. The Court determined that the solution to this would be to repeal the city bill allowing the FOP to take contributions directly from payroll. Because there are other alternatives that are more tailored to serve the government's interest, the Court determined that the ban was not tailored in a direct and material way to prevent the harms. It was not closely tailored enough to avoid unnecessary abridgment of associational freedoms and so it unconstitutionally restricts the police's participation in the political process.

To read the full opinion, please visit

Panel (if known): Hardiman, Scircia, and Nygaard, Circuit Judges

Argument Date: November 12, 2013

Argument Location:

Date of Issued Opinion: August 18, 2014

Docket Number: 13-1516

Decided: Reversed and remanded

Case Alert Author: Cheri Snook

Counsel: Thomas W. Jennings, Marc L. Gelman, Jennings Sigmond, for plaintiff-appellants; Eleanor N. Ewing, Robert D. Aversa, Mark Maguire, for defendants-appellees

Author of Opinion: Hardiman

Circuit: 3rd Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/25/2014 09:00 AM     3rd Circuit  

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