MELVIN et al v. INJUSTICE WATCH NFP

Filing 28

ORDER THAT DEFENDANT'S MOTION (ECF DOC NO. 14 ) IS GRANTED IN PART AND DENIED IN PART AS OUTLINED HEREIN. SIGNED BY HONORABLE MARK A. KEARNEY ON 07/29/2022. 07/29/2022 ENTERED AND COPIES E-MAILED.(nd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MICHAEL MELVIN, DANIEL
FARRELLY, BRION MILLIGAN,
MARK PALMA, ROBERT BANNAN,
JESUS CRUZ, STEVEN HARTZELL,
JOSEPH FOX
v.
CITY OF PHILADELPHIA

: CIVIL ACTION
:
:
:
:
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: NO. 21-3209
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:

ORDER
AND NOW, this 29th day of July 2022, upon considering Defendant’s Motion to dismiss
(ECF Doc. No. 14), Plaintiffs’ Response (ECF Doc. No. 18), Defendant’s Reply (ECF Doc. No.
22), following oral argument during which the parties agreed to defer decision on the First
Amendment issue at this stage mindful of the appeal in Fenico v. City of Philadelphia (3d Cir. No.
22-1326), and for reasons in the accompanying Memorandum, it is ORDERED Defendant’s
Motion (ECF Doc. No. 14) is GRANTED in part and DENIED in part:
1.

We deny Defendant’s motion to dismiss the First Amendment claim today only to

allow further analysis after our Court of Appeals’ final Order in Fenico v. City of Philadelphia
which both parties agree address the same factual issues and nothing in this Order should be
construed as a finding Plaintiffs have stated a First Amendment claim until further analysis;
2.

Defendant’s counsel (serving as the City’s lead counsel in the Fenico appeal as

well) shall file a Federal Rule of Appellate Procedure 28 and Local Appellate Rule 28.1(a)(2)
Notice in the Court of Appeals no later than August 8, 2022 advising the Court of the existence of
this case involving the same First Amendment issue by other Philadelphia police officers against
the City;

3.

We grant Defendant’s motion to dismiss Plaintiffs’ Second Amendment claim as

withdrawn;
4.

We grant Defendant’s motion to dismiss Plaintiffs’ claims under the Pennsylvania

Constitution without prejudice to specifically plead claims of declaratory relief consistent with
Rule 11;
5.

We grant Defendant’s motion to dismiss Plaintiffs’ Fourteenth Amendment

vagueness challenge with prejudice for lack of standing;
6.

We grant Defendant’s motion to dismiss Plaintiffs’ Fourteenth Amendment “as

applied” challenge and equal protection claims without prejudice;
7.

We grant Defendant’s motion to dismiss Plaintiffs’ due process claims without

prejudice; and,
8.

Plaintiffs are granted leave to file an amended Complaint no later than August 19,

2022 to plead claims not dismissed with prejudice.

_________________________
KEARNEY, J.

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