ONE THREE FIVE, INC. v. THE CITY OF PITTSBURGH et al
Filing
29
MEMORANDUM OPINION indicating that, for reasons more fully stated within, Plaintiff One Three Five, Inc. t/d/b/a Blushs Motion for Temporary Restraining Order, or, in the Alternative, Motion for Preliminary Injunction 3 is granted; An appropriate Order follows. Signed by Judge Nora Barry Fischer on 6/17/13. (jg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ONE THREE FIVE, INC. t/d/b/a BLUSH,
)
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Plaintiff,
v.
CITY OF PITTSBURGH, ACTING CHIEF
OF POLICE REGINA MCDONALD,
Defendants.
Civil Action No. 13-467
Judge Nora Barry Fischer
MEMORANDUM OPINION
I. INTRODUCTION
In this case, Plaintiff One Three Five, Inc. t/d/b/a Blush (“Plaintiff”), an adult
entertainment establishment in downtown Pittsburgh featuring nude, erotic dancing, alleges that
its federal constitutional rights to freedom of speech, procedural due process and equal protection
of the laws and its Pennsylvania constitutional right to freedom of speech have been violated by
the recent decision by Defendant Acting Chief of Police Regina McDonald (“Acting Chief
McDonald”) revoking Blush’s status as an approved secondary employer under the Bureau of
Police’s Secondary Employment Program and preventing City of Pittsburgh Bureau of Police
officers from working off-duty secondary employment details at adult establishments. (Docket
No. 1-1). Plaintiff has moved for a temporary restraining order or, alternatively, a preliminary
injunction to enjoin Defendants, the City of Pittsburgh (“the City”) and Acting Chief McDonald
from enforcing this directive. (Docket Nos. 3, 4, 5, 25-26). Defendants oppose both motions
and contend that Acting Chief McDonald’s directive was made to enforce an alleged longstanding restriction on the ability of City police officers to engage in secondary employment at
1
locations that may tend to bring the Bureau into disrepute.1 (Docket No. 8, 9, 23-24). However,
Defendants admit that the policy has never been enforced in the manner that was taken by Acting
Chief McDonald. (Id.).
The Court held a motion hearing on April 25, 2013 during which the parties presented
witness testimony and documentary evidence for the Court’s consideration and the evidentiary
record has now closed. (See Docket No. 22; Pl. Ex. 1-3; Def. Ex. B-D). The parties have since
filed proposed findings of fact and conclusions of law with respect to the requested temporary
restraining order and/or preliminary injunction. (See Docket Nos. 23-27). Upon consideration of
the present evidentiary record and all of the parties’ arguments, the Court finds that Plaintiff has
met its burden to establish that the issuance of preliminary injunctive relief is appropriate in this
case and Plaintiff’s Motion [3] will be granted. The Court now turns to its explanation of this
decision.
II. FINDINGS OF FACT2
At the April 25, 2013 hearing, the Court accepted testimony from: Albert Bortz,
proprietor of Blush; Anna West, head bartender at Blush; Officer Bernard Joseph McMullan of
the City of Pittsburgh Bureau of Police, who also worked secondary employment details at
Blush; Sabrina Bortz, payroll manager at Blush; Lieutenant Jennifer Ford of the City of
Pittsburgh Bureau of Police; Acting Chief McDonald; and Sergeant Michael LaPorte of the City
of Pittsburgh Bureau of Police and President of the Fraternal Order of Police Fort Pitt Lodge No.
1 (“FOP”).3 (Docket No. 22). The Court found all of the witnesses to be generally credible and
1
Defendants have also filed a motion to dismiss and/or summary judgment wherein they seek dismissal of
Plaintiff’s claims or judgment entered in their favor. (Docket Nos. 13, 21). Defendant opposes same. (Docket No.
16). The Court will issue a separate Memorandum Order addressing these motions.
2
“A court considering whether to grant a preliminary injunction may assess the credibility of witnesses
testifying before it at a preliminary injunction hearing, and base its decisions on credibility determinations.” Hudson
Global Resources Holdings, Inc. v. Hill, Civ. A. No. 07-132, 2007 WL 1545678, at *8 (W.D. Pa. May 25, 2007).
3
The FOP is the local police union and its members are City of Pittsburgh Bureau of Police officers. See Pl.
2
truthful throughout their respective testimonies. The parties also submitted all of the following
documents into evidence: Order 29-1 (Pl. Ex. 1); Arbitration Award (Pl. Ex. 2); Deposition of
Regina McDonald (Pl. Ex. 3); IACP Model Policy on Secondary Employment (Def. Ex. B);
Pittsburgh Post-Gazette article “Special events office channels millions in off-duty Pittsburgh
Police pay” dated 2/26/13 (Def. Ex. C); and a Triblive article “Pittsburgh policies for off-duty
police officers’ gigs lax” dated March 11, 2013 (Def. Ex. D).4
The Court holds that the credible evidence presented during the hearing established the
following facts by a preponderance of the evidence.
A. Historical Background of Bureau’s Governance of Off-Duty Conduct of Officers
The parties agree that the City of Pittsburgh Bureau of Police and the Acting Chief of
Police have the authority to create and enforce policies governing the off-duty conduct of City of
Pittsburgh police officers. (Docket No. 22 at 203-04). Indeed, they have stipulated that police
departments have the authority to discipline officers for off-duty conduct, including for engaging
in conduct unbecoming an officer and that there are policies, procedures and guidelines that are
adopted by any police department that provide for discipline of an officer based on his or her
engaging in certain improprieties while off-duty. (Id.). However, the regulation of officers’ offduty conduct by the Bureau and Chief are issues that have been subject to collective bargaining
and arbitration between the Bureau and the FOP. (See Pl. Ex. 2; Docket No. 10-1).
Acting Chief McDonald testified that the Bureau has historically permitted its officers to
engage in off-duty secondary employment “details” within the City limits wherein officers
essentially provide security services to private businesses while wearing their full police uniform
Ex. 2; Docket No. 22 at 193. The FOP represents City police officers in collective bargaining matters with the City
of Pittsburgh. Id.
4
The Court sustained the Plaintiff’s objections to Defendants’ introduction of a series of police reports into
evidence, marked as Def. Ex. A, for reasons stated in an Order entered on May 23, 2013. (Docket No. 28).
3
and carrying their Bureau-issued weapons in exchange for a fee paid by the private business to
the City and for wages paid by the private business to the individual officer working in this
capacity. (Docket No. 22 at 151). In these roles, officers are authorized to enforce City
ordinances and laws, as if they were on-duty. (Id.). Due to jurisdictional limitations on the
scope of the arrest powers afforded to law enforcement officers in other municipalities and other
conflicts which are not directly relevant here,5 it is undisputed that City of Pittsburgh police
officers are the only law enforcement officers who could provide the same type of service to a
business located within the City limits. (Id. at 181, 185).
B. Bureau’s Policy-Making Practices and Procedures
The record evidence before the Court demonstrates that such off-duty details by police
officers have been permitted by the Bureau since at least 1966. (Id. at 17, 151). For many years
the practice was permitted by the Bureau without a written policy governing same. 6 (Id. at 151).
As is discussed in further detail below, over time, the Bureau developed a policy governing the
off-duty employment of its officers. Lieutenant Ford, Acting Chief McDonald and Sergeant
LaPorte testified consistently concerning the procedures employed by the Bureau to establish a
new policy or revise a current policy. (Docket No. 22 at 99, 123, 175, 193-95). Lieutenant Ford
was familiar with these procedures as she has held a position overseeing policy writing within
the Bureau since 2004. (Id. at 99, 123). Acting Chief McDonald likewise testified that she was
5
The record evidence presently before the Court suggests that State Police Troopers and Allegheny County
Deputy Sheriffs are not permitted to engage in this type of off-duty secondary employment details due to the internal
policies of those agencies barring such activities. (Docket No. 22 at 181, 185). In addition, the testimony
established that the City generally accepts liability for claims made against officers arising from arrests and other
incidents taking place during the secondary employment details. (Id. at 181-82). The City is self-insured for such
claims. (Id. at 182). Further, if an officer is injured while performing secondary employment duties, he or she is
generally entitled to Heart and Lung or Workers Compensation benefits under the City’s policies. (Id. at 196).
6
Although not directly relevant here, the testimony established that initially there was also no office or
section of the Bureau which provided direct oversight over the off-duty employment of officers. (Docket No. 22 at
151). It appears that, at most, individual commanders provided such oversight of the off-duty work of the officers
assigned to them. (Id.). The Special Events and Cost Recovery Office (“Special Events”) presently provides some
oversight of the program, particularly with respect to the collection of fees from secondary employers and
scheduling issues. (Id. at 122, 175-76; Pl. Ex. 1 at §§ 3.2.1; 3.4; 7.4; 8).
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familiar with the procedures for policy writing given her prior roles on a labor-management
committee and as Assistant Chief for Administration for which her duties included oversight of
the Special Events Office. (Id. at 175). Sergeant LaPorte also had some involvement with the
review of Bureau policies given his role as President of the FOP. (Id. at 193-95).
The Bureau uses its internal staff to draft new policies and revise its current policies. (Id.
at 99). The initial request to draft or revise a policy is usually made by the Chief of Police or one
of the higher Commanders in the Bureau to Lieutenant Ford and/or an officer who assists her in
drafting the policies.
(Id.). The Bureau maintains a “bank” of model policies which are
referenced for guidance and used as a base to develop the new or revised policy. (Id.). The
primary set of model policies that is maintained by the Bureau is produced by the International
Association of Chiefs of Police (“IACP”) National Law Enforcement Policy Center. (Id.; Def.
Ex. B). Lieutenant Ford testified that this organization has a model policy writing center and that
the model policies it produces may be used by any police department in drafting policies. (Id. at
101). She explained that the IACP model policies are often accompanied by white papers or
research detailing the reasons for the language incorporated into the suggested model policy. (Id.
at 101-02). She also understands that the IACP model policies are considered best practices for
law enforcement agencies and are widely used by other police departments in developing
policies. (Id. at 102). In addition to using the model policies, the officers tasked with drafting
the policy will often meet with the higher level officers who requested the new policy or revision
and/or with any officers who are considered experts on the subject matter of the policy and will
incorporate their suggestions into the policy. (Id. at 100). On occasion, the officers may secure
a legal opinion concerning a policy from the City’s Legal Department. (Id. at 123).
The first draft of a policy is prepared by Lieutenant Ford or another officer working with
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her. (Id. at 100). It is then sent for an initial level of review to the command staff, which
consists of the Chiefs and Commanders of the Bureau, and to a set of police supervisors who
have been asked to review policies. (Id. at 100). This initial review period typically lasts about a
week. (Id. at 101). Lieutenant Ford testified that any comments, suggestions or concerns
regarding the policy which are made during this level of review are typically incorporated into
the policy. (Id.). After any necessary revisions are made, the policy is then sent to the FOP for
its review. (Id.). Under the collective bargaining agreement (“CBA”)7 between the City and the
FOP, the FOP is granted fifteen (15) days to consider the proposed policy and to respond with
comments, suggestions or concerns as to same. (Id.). The officers will consider any response
from the FOP and incorporate any necessary revisions into the policy. (Id.). After all changes
are made, the final version of the proposed policy is sent to the Chief of Police for approval.
(Id.). Once it is signed by the Chief, it becomes the policy of the Bureau. However, upon
approval by the Chief, the policy is generally not released to the public. (Docket No. 22 at 122,
129-30).
Lieutenant Ford and Acting Chief McDonald offered some general testimony concerning
the Bureau’s early development of a formal, written policy governing secondary employment of
City police officers. (Id. at 103-04, 151-52). They recalled that the first version of the policy
was developed during the tenure of former Chief of Police Robert McNeilly and may have been
implemented in the early 2000s. (Id.). Neither remembered being personally involved in the
drafting of the initial policy at that time and the prior version of the policy was not presented to
the Court during the proceedings. (Id. at 103).
C. IACP Model Policy on Secondary Employment
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The Court notes that the CBA is the active agreement between the City and the FOP governing workrelated matters concerning the City’s employment of City police officers. See Pl. Exs. 1, 2.
6
Defendants offered IACP Model Policy on Secondary Employment dated October 1996
and said model policy was admitted into evidence, with the Court reserving its ruling on the
weight, if any, to be given to same. Def. Ex. B. Defendants did not present any evidence which
confirmed that the IACP Model Policy was used by the Bureau to develop its own secondary
employment policy and their witnesses were unaware if the IACP Model Policy was even
referenced during that process. The IACP Model Policy is not identical to the Bureau’s Order
29-1, which is at issue in this case, but is similar in some respects. Def. Ex. B. From the Court’s
view, the major difference between the IACP Model Policy and Order 29-1 is that the IACP
Model Policy regulates only the conduct of the police officers and thereby contains no provisions
which define a secondary employer, describe the process for a secondary employer to participate
in the program, grant the authority to approve or disapprove of such an application to the chief of
police or some other regulatory body, or set forth any guidelines for the revocation of secondary
employer status. Compare Def. Ex. B; Pl. Ex. 1.
The nomenclature used by the IACP Model Policy is also different. To this end, the
IACP Model Policy distinguishes between “extra-duty employment” and “regular off-duty
employment” and provides guidelines for law enforcement personnel engaged in these types of
secondary employment.
Def Ex. B. at § III.
“Extra-duty employment” is defined as
“employment that is conditioned on the actual or potential use of law enforcement powers by the
police officer employee.” Id. The policy further states that police officers may engage in “extraduty employment” in a number of situations including “security and protection of life and
property.” Id. at § IV.B.2.c. “Regular off-duty employment” is defined as “employment that
will not require the use or potential use of law enforcement powers by the off-duty employee.”
Id. at § III. This type of employment is permissible if it does not present a conflict of interest
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between the duties of the law enforcement officer and the secondary employer and the Model
Policy provides examples of potential conflicts. Id. at § IV.A.2. It also states the following with
respect to “regular off-duty employment”:
3.
Employment that does not constitute a threat to the status or
dignity of law enforcement as a professional occupation.
Examples of employment that constitute such a threat and
should be denied include, but are not limited to:
a.
Establishments that sell pornographic books
or magazines, sexual devices or videos, or
that otherwise provide entertainment or
services of a sexual nature.
b.
Any employment involving the sale,
manufacture, or transport of alcoholic
beverages as the principal business.
c.
Any gambling establishment.
Id. at § IV.A.3. The IACP Model Policy suggests that law enforcement agencies place some
limitations on regular off-duty employment and extra-duty employment which focus on the
eligibility of the officer, the number of hours that may be worked, scheduling concerns and
prioritizes such outside work below regular police duties of the officers. Id. at § IV.C. The
IACP Model Policy concludes that “[p]ermission for a police employee to engage in outside
employment may be revoked where it is determined pursuant to agency procedure that such
outside employment is not in the best interests of the agency.” Id. at § IV.C.7.
D. Arbitration Award and CBA
The earliest evidence of the Bureau’s formal policy governing secondary employment of
its officers in the present record is an Arbitration Award in Case No. 55 360 L 00341 04 between
the City and FOP from a hearing dated June 9, 2006. Pl. Ex. 2. The Arbitration Award details
certain terms and conditions of the secondary employment program vis-à-vis the Bureau and
City police officers which would govern the parties’ relationship going forward. Id. Sergeant
LaPorte testified that the terms and conditions of Section A, paragraphs 1-14, of the Arbitration
8
Award were directly copied by the City’s lawyers into the CBA between the City of Pittsburgh
and the FOP. (Docket No. 22 at 201). Indeed, the Court agrees that several of the paragraphs in
the Arbitration Award are identical to the portion of § 24 of the CBA which was also presented
by Defendants for the Court’s consideration. (See Docket No. 10-1).
The Arbitration Award and CBA contain a similar provision which is relevant to this
case, and provides that “[t]he City may enact reasonable rules and regulations to govern the
secondary employment of police personnel, including but not limited to … limitations on who
may be an approved Secondary Employer.” (Docket No. 10-1 at ¶ 4; Pl. Ex. 2 at § A.4
(emphasis added)). Thus, pursuant to this language, the City is granted the discretion to set
limitations on entities that may be approved as secondary employers under the program and
apparently may do so without seeking the input of the FOP. Id. The remainder of the provisions
of the Arbitration Award and CBA set forth the parameters of the secondary employer program
as it relates to the duties and responsibilities of the City and its police force. To this end, both
the Arbitration Award and CBA emphasize that police officers are “first and foremost police
officers or police supervisors of the City,” that officers must avoid conflicts between their
regular duties and secondary employment, and that officers are voluntary participants in all
secondary employment work. (Id. at ¶¶ 1, 2). The documents also explain, among other things,
that the hours worked by City police officers in secondary employment positions do not
constitute overtime hours as city employees and that officers are paid rates for off-duty jobs
pursuant to any agreements between the City and the Secondary Employer. (Id. at ¶ 3).
E. Order 29-1
The Pittsburgh Bureau of Police has enacted Order 29-1, an internal, non-public, Bureau
policy the purpose of which “is to set forth guidelines to govern the secondary employment by
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members of the Pittsburgh Bureau of Police.” (Pl. Ex. 1). Former Chief of Police Nate Harper
signed the current version of Order 29-1, which has an effective date of April 16, 2007. (Id.).
Order 29-1 stresses that City police officers “must recognize that their primary duty, obligation
and responsibilities are to the Pittsburgh Bureau of Police,” that police work takes precedence
over secondary and outside employment, including emergency situations, special assignments or
extra duty, that conflicts of interest must be avoided and that while secondary employment is
permissible, it is subject to the terms and conditions of Order 29-1 and any such off-duty work
by the officers must be approved by the Bureau. (Id. at §§ 1.2, 3.0, 4.1, 6.0). In addition, the
policy states that officers “will conduct themselves as though they were on-duty, and will be
subject to all departmental rules, regulations, policies and procedures set forth by the Pittsburgh
Bureau of Police while engaged in a secondary employment capacity.” (Id. at § 4.1). Section
2.0 defines a number of terms of the policy, including:
2.1 Secondary Employment – Any employment of a member by a
private entity that is conditioned on the actual or potential use of
law enforcement powers by the police officer employee.
2.2 Outside Employment – Any employment of a member by a
private entity that will not require the use or potential use of law
enforcement powers by the off-duty employee.
2.3 Secondary Employer – A private entity that employs a
member conditioned on the actual or potential use of law
enforcement powers by the police officer employee.
…
2.9. Detail – The secondary employment opportunity. The word
“detail” is interchangeable with the phrase “secondary employment
opportunity.”
(Id. at §§ 2.1, 2.2, 2.3, 2.9). Order 29-1 grants considerable authority to the Chief of Police to:
determine the eligibility of all city police officers for secondary employment details, (Id. at §
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5.0); approve or disapprove of the type of secondary employment for which any officer engages,
(Id. at § 3.1); regulate the number of hours any officer may work in these off-duty positions, (Id.
at §§ 3.1, 13.0, 14.0); and approve or disapprove of any application by a potential secondary
employer to participate in the hiring of city police officers for off-duty details, (Id. at § 7.2). The
relevant provisions appear in the policy, as follows:
3.0 Authority
3.1 The Chief of Police or his/her designee shall have the authority
to approve or disapprove the secondary employment of any
member of the Bureau of Police.
…
3.3 The Chief of Police or his/her designee may regulate the type
of employment and the hours a member may work.
…
4.0 Accountability
4.1 Members will conduct themselves as though they were onduty, and will be subject to all departmental rules, regulations,
policies and procedures set forth by the Pittsburgh Bureau of
Police while engaged in a secondary employment capacity.
…
7.0 Secondary Employer Obligations and Options
7.1 The Secondary Employer must complete and submit a PBP
Form #21.9.10, “Secondary Employment Agreement.”
7.2 The “Secondary Employment Application Agreement” is
reviewed, approved or disapproved by the Chief of Police or
his/her designee.
7.3 Approved applicants are notified in writing of the approval of
the
“Secondary Employment
Application
Agreement.”
Obligations and options are presented.
7.4 Secondary Employers have three options when scheduling
officers for a detail.
7.4.1. Option 1 – The secondary employer can schedule officers
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by utilizing the services of the Pittsburgh Bureau of Police, Office
of Special Events and Cost Recovery (SECR).
…
7.4.1.2. The secondary employer will be billed for the
officer(s) hourly rate and cost recovery at the end of each month.
The Cost Recovery Fee (“CRF”) is $3.85 per hour/per officer.
Failure to pay this bill within thirty (30) days of receipt may result
in the revocation of the secondary employer’s approved status.
…
7.4.2. Option 2 – The secondary employer can schedule officers
by utilizing the services of the Pittsburgh Bureau of Police, Officer
of Special Events and Cost Recovery using a preference list.
…
7.4.2.4. The secondary employer will be billed for the
officer(s) hourly rate and cost recovery at the end of each month.
The Cost Recovery Fee (“CRF”) for employers submitting a
preference list is $3.85 per hour/per officer. Failure to pay this bill
within thirty (30) days of receipt may result in the revocation of the
secondary employer’s approved status.
…
7.4.3. Option 3 – An approved secondary employer that is not
subject to special events or traffic obstruction permits may request
to designate an active Pittsburgh Police officer to coordinate and
schedule details.
…
7.4.3.4. The secondary employer has the option of having
the detail officers paid through the Police Bureau’s payroll system
or electing to issue checks individually to the detail officers.
(Note: the secondary employer must issue cash or checks
directly to the detail officers or make payment through the
Bureau’s payroll system. It is prohibited to make
payment through the scheduler or any other third party.)
7.4.3.5. The secondary employer will be billed for cost
recovery at the end of each month. The Cost Recovery Fee
(“CRF”) for secondary employers utilizing a scheduler is
$3.85 per hour/per officer. Failure to pay the Cost
Recovery Fee within thirty (30) days of receipt may result
in the revocation of the secondary employer’s approved
status.
…
13.0 Secondary Employment Limitations
…
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13.5 With approval, an officer may engage in secondary
employment opportunities at establishments whose primary
purpose is the selling and dispensing of alcoholic beverages under
the following provisions:
13.5.1. Officers shall be in full uniform
13.5.2. Officers are not permitted to work inside the
establishment, but may respond inside to handle any
disturbances, crimes, etc., occurring in the establishment.
13.5.3 Officers are not permitted to “card” patrons
13.5.4. Officers may not search patrons prior to entry into
the establishment. (This provision also prohibits the use of
hand-held metal detectors for the purpose of scanning or
searching customers for weapons.).
13.6 Officers may not work secondary employment at any location
that may tend to bring the Bureau of Police into disrepute or that
may reduce the efficiency or usefulness of the officer as a member
of the Bureau of Police.
…
14.0 Outside Employment
14.1 Employees may engage in off-duty outside employment that
will not require the use or potential use of law enforcement powers
by the off-duty employee as long as the following requirements are
met:
…
14.1.4 The employment does not constitute a threat to the
status or dignity of the police as a professional occupation.
Some examples of employment that present a threat to the
status or dignity of the police profession include, but are
not limited to:
14.1.4.1 Establishments that sell pornographic
books, magazines, sexual devices or videos or that
otherwise provide entertainment or services of a
sexual nature.
14.1.4.2. Any gaming establishment not exempted
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by law.
15.0 General Rules, Regulations & Guidelines
…
15.5 Officers working secondary employment details will not
enforce business rules or directions of the Secondary Employer.
..
15.13 All members who wish to work or schedule secondary
employment opportunities shall adhere to the Bureau of Police
Manual of Procedural Orders at all times while working secondary
employment opportunities.
(Pl. Ex. 1 (emphases in original)).
All of the law enforcement witnesses who testified at the hearing confirmed that Order
29-1 distinguishes between “outside employment” and “secondary employment.” (Docket No.
22 at 119 (Ford); 149, 155-56 (McDonald); 194 (LaPorte)).
Sergeant LaPorte succinctly
explained that an officer engaged in “outside employment” is working in a position which does
not include the potential use of law enforcement powers by the officer, such as employment at
Home Depot or Giant Eagle. (Docket No. 22 at 194). In contrast, officers working in a
“secondary employment” capacity are dressed in their full City of Pittsburgh Bureau of Police
uniform, possess their Bureau-issued weapons and are expected to make full use of their arrest
powers, as necessary. Pl. Ex. 1 at § 2.1. The City’s witnesses, Acting Chief McDonald and
Lieutenant Ford, conceded that Section 14.0 of Order 29-1 only applied directly to “outside
employment” although, as is discussed in more detail below, they opined that the language of
Section 14.1.4 was relevant to their interpretation of the provisions governing “secondary
employment” under Order 29-1. (Docket No. 22 at 155-56).
The testimony at the hearing established that, consistent with Order 29-1, entities seeking
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to become approved secondary employers are required to fill out an application and submit it to
the Bureau. (Docket No. 22 at 122, 176). Acting Chief McDonald explained that the application
constitutes an agreement between the Bureau and the secondary employer. (Id. at 176). Upon
receipt, the entity’s application is forwarded to the Chief of Police or his/her designee for a
decision of whether to approve or disapprove of the application. (Id.). If the application is
approved, the Bureau sends out a packet of information to the entity. (Id. at 123, 176). Although
an information packet was not admitted into evidence, Acting Chief McDonald testified that it
would include only a summary of the policies and procedures under Order 29-1 because the
policy itself is not generally made available to the public or the secondary employers, even upon
request. (Id. at 122, 176). She provided little detail about the information provided about the
policy to the secondary employer but confirmed that the packet would at least include details
concerning: the $3.85 per hour cost recovery fee due to the City; the amount of wages due to the
officers working the details; and, the potential methods available to pay the officers working
details. (Id. at 176).
Acting Chief McDonald testified that an application may be denied if the business of the
entity seeking services constituted a conflict of interest with the Bureau or if accepting the
business as a secondary employer would otherwise violate Order 29-1. (Id. at 162-63). As an
example, she explained that she had recently denied an application for a security company that
wished to hire officers in a secondary employment capacity. (Id.). She also testified that an
entity’s secondary employer status may be terminated if the entity failed to pay the necessary
cost recovery fee. (Id.).
F. Plaintiff’s Establishment –Blush
Plaintiff One Three Five, Inc. is owned by Albert Bortz and operates the Edison Hotel
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and Blush in a commercial building located on 9th Street in the Cultural District of downtown
Pittsburgh. (Docket No. 22 at 17-18, 37, 62). Plaintiff’s operation of the Edison Hotel is not at
issue in this litigation.
With respect to Blush, the parties agree that Blush features adult
entertainment consisting of nude, erotic dancing by its dancers and national acts. Aside from the
nude dancing, the atmosphere at Blush is akin to a typical sports bar environment with numerous
televisions, a disc jockey playing music and a cash bar. (Id. at 20, 49-50, 158). Bortz testified
that he represents the third generation of his family to operate these types of businesses at that
location and that his family has done so for approximately eighty (80) years. (Id. at 17). He
further explained that he has personally worked at the businesses (and their predecessors) for
almost forty-three (43) years. (Id.).
The main entry doors to Plaintiff’s businesses are located on 9th Street. (Id. at 34, 55).
These entry doors open into a lobby area which was recently renovated and consists of restrooms
and two sets of internal doors that are used to access the different businesses, i.e., Blush and the
Edison Hotel. (Id. at 34, 55, 60, 74). Acting Chief McDonald testified that the outdoor signage
of the building is unremarkable and admitted that there are no bold signs on the building directly
advertising Blush as a strip club or an adult business. (Id. at 161).
Bortz offered unrebutted testimony that Blush is an award-winning business, ranked as
one of the top 100 adult-entertainment clubs in the country.
(Id. at 25). Plaintiff’s witnesses
explained that Blush attracts steady business during the week but draws larger crowds when
national acts perform on weekends and at times when large events are going on in the City. (Id.
at 22-3, 25-6, 34).
The patrons at Blush are diverse in age--ranging from college-aged
individuals to older, professional businessmen and couples. (Id. at 19, 25-6, 53). The witnesses
also advised that Blush’s crowds on Friday and Saturday nights are generally more boisterous
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because it is a recognizably younger audience and often includes bachelor and bachelorette
parties, who tend to drink alcohol more heavily. (Id. at 20-1, 53). West testified that the larger,
more aggressive crowds on the weekends are especially difficult to deal with in her role as head
bartender. (Id. at 51-54).
In any event, Bortz testified that he operates a clean establishment, which has had no
significant issues with criminal activity by patrons or otherwise. (Docket No. 22 at 25). The
parties agree that Blush is not a nuisance bar and has recently had a disproportionately low
number of criminal incidents at the site when compared to other locations within the City for the
period of time from January of 2010 until the date of the hearing, including no reported criminal
incidents from March 12, 2013 through April 25, 2013. (Id. at 77-8, 95). Blush does not hire
bouncers or security guards to provide security. (Id. at 36). Instead, it relies on its floor
managers and other staff to enforce its business rules and to report any criminal activity to the
authorities, as necessary. (Id. at 50-1).
G. Blush’s Hiring of Off-Duty City Police Officers
Bortz testified that since 1966 his family has been supplementing their internal staff by
hiring off-duty City police officers to work off-duty secondary employment details at their
facilities. (Docket No. 22 at 17). More recently, Blush has typically hired an off-duty officer to
work on weekend nights and on other dates which correspond to large events in the City given
the increased number of patrons on those days and the greater need for crowd control. (Id. at
36). The officer hired by Blush is stationed outside the business on 9th Street from
approximately 10:00 p.m. until 2:30 a.m. (Id. at 46, 68). Bortz explained that he hires an offduty officer in order to deter crime both outside and inside his establishment. (Id. at 18). One of
the problems his business faces outside the establishment are aggressive panhandlers that bother
17
his customers while entering and leaving the facility and when smoking outside. (Id. at 29-30).
The main issues with crime inside Blush include theft of services and failure/refusal to pay for
bar tabs. (Id. at 18, 66). Bortz stated that the presence of the off-duty officer on 9th Street also
provides a deterrent to crime at other businesses in the Cultural District and thus additional
security for members of the public who are out in that area. (Id. at 18-9, 23-4). Bortz and head
bartender West believe that the off-duty officer is useful in many ways, including: preventing
crimes from occurring inside the facility; dispersing crowds at the conclusion of the night;
deterring aggressive panhandlers who bother customers and employees during and after business
hours; and, providing security for its staff while they close the cash registers and return to their
vehicles in an adjacent lot which is located across 9th street from the business. (Id. at 18-20, 48).
Bortz proclaimed that he chooses to hire City police officers rather than bouncers or
security guards because of the superior level of service provided by the City police officers and
the level of professionalism exhibited by the officers who have worked for his businesses in this
capacity. (Id. at 18). He further testified that the presence of the officer insures that his business
is secure and opined that the police presence makes his patrons more comfortable. (Id. at 18-9).
He believes that the officer’s presence on the weekends also deters crime during the week
because potential criminals know that the officers are often stationed there but do not know
when/if they are there on any given night. (Id.). Head bartender West agreed that the officer
provides peace of mind that she and the other staff members are safe while working and later,
when they return to their vehicles at the conclusion of a shift. (Id. at 48).
H. Blush’s Status as an Approved Secondary Employer and Activities Under the
Program
Since at least 2007, Blush has been an approved secondary employer under the Bureau’s
Secondary Employer Program. (Id. at 31). Bortz testified that he filled out application forms
18
and submitted them to the City for approval and that his business was always approved. (Id.).
(The actual forms were not admitted into evidence). In exchange for the services performed by
the officers, Blush pays the officer working the detail wages (time and a half) and also pays the
City a cost recovery fee, which is presently $3.85 per hour. (Id. at 37, 83-4, 87-8, 167-68). It is
undisputed that Blush has always timely paid the applicable cost recovery fee to the City and any
wages due to the officers working secondary employment details. (Id. at 86). Bortz explained
that he has never had any issues with the City concerning the participation of his businesses in
the secondary employer program. (Id. at 33). Indeed, Acting Chief McDonald conceded that
Blush had been approved as a secondary employer for many years by past Chiefs of Police,
including her immediate predecessor Nate Harper. (Id. at 149-150). She also told the Court that
Blush’s application was most recently approved in November of 2012, when the Bureau updated
its records and required that all secondary employers submit updated applications in order to
continue to participate in the program. (Id. at 176-77).
Officer Bernard Joseph McMullan is a 19-year veteran of the City of Pittsburgh Bureau
of Police. (Id. at 24). He testified that he has worked a secondary employment detail at Blush
since 1997. (Id.). His father was also a City police officer and worked the detail at Blush for a
number of years prior to his assuming that duty. (Id. at 33, 59). Officer McMullan testified that
the City always remains his primary employer, although he punches a clock at Blush to record
his time and is paid directly by Plaintiff for his services. (Id. at 74-5). He explained that he is
not subject to the business rules of Plaintiff but is required to abide by the policies and
procedures of the City set forth in Order 29-1 at all times. (Id. at 64-5). Officer McMullan
offered credible and unrebutted testimony that he performed his secondary employment duties at
Blush consistently with the Bureau’s policies and procedures and that he has never been
19
requested to do anything inappropriate by Plaintiff’s staff.8 (Id. at 63-5, 74). In this regard, he
generally remains stationed at his post outside the building on 9th Street unless called upon to
assist with an alleged criminal incident inside. (Id. at 66-7, 74). On occasion, and often due to
inclement weather, Officer McMullan will retreat his post inside the shared lobby area between
Blush and the Edison Hotel for a period of time but he is never stationed inside Blush during the
detail. (Id.).
Officer McMullan explained that his primary functions while working at Blush are to
provide a police presence at the establishment and to respond to calls for police assistance from
the business, as needed. (Id. at 59-60). He also helps to disperse the crowd after Blush closes at
2:00 a.m. and provides security while the staff cashes out registers and returns to their vehicles.
Officer McMullan recounted that Blush has not had any significant criminal events take place
during the dates and times that he worked there. (Id. at 60-1). He agreed that he has not had the
need to request back-up support from on-duty police officers since January 2010, that Blush has
not made any such calls directly to 911 while he was stationed there and that he has made no
arrests during that time period from incidents occurring inside the facility. (Id. at 67). However,
Officer McMullan testified that he has responded to calls for assistance from other business
owners in the area while working the detail. (Id. at 61-62, 67, 71). Of note, in one instance,
Officer McMullan responded to a general call on his radio that two armed robbers were located
in the Cultural District. (Id. at 61-62). He made a positive identification of these armed
individuals based on the description provided over the radio and was able to detain them. (Id.).
When asked whether he believed that his presence at Blush brought disrepute upon the
Bureau, Officer McMullan emphatically responded “absolutely not.” (Id. at 63). He explained
8
Officer McMullan testified that if he is on vacation, ill or unable to work the detail due to his regular police
work, another officer will work the detail for him. (Docket No. 22 at 68). There was no evidence introduced
suggesting that these substitute officers engaged in any inappropriate behavior.
20
to the Court that throughout his tenure working the secondary employment detail at Blush, the
Bureau has required him to annually fill out forms and request that he be able to continue
working the detail. (Id. at 68-69). His applications to work at Blush have always been approved
by the Bureau. (Id.).
I. Acting Chief McDonald’s Decision of March 13, 2013
On March 13, 2013, Acting Chief McDonald sent Blush a one-line letter advising that it
could no longer participate in the secondary employer program and terminated its status as an
approved secondary employer.9 (Docket No. 22 at 39, 138). Although this letter was not
presented at the hearing nor admitted into evidence, Acting Chief McDonald explained that she
advised Blush via the letter that it was a violation of § 13.6 of the Bureau’s Policy to permit
officers to work secondary employment details at such an establishment because the officer’s
presence there brought the “Bureau into disrepute.” (Id. at 168). Blush was not granted any
ability to protest or appeal the decision. (Id. at 39-40; 167-68). Acting Chief McDonald testified
that she sent a similar letter to Cheerleaders, another adult entertainment establishment in the
Strip District, and likewise terminated its status as an approved secondary employer. (Id. at
138). She did not terminate the status of any other approved secondary employers at that time
and admitted that she had not investigated whether any other approved entities were in some way
violating her interpretation of Order 29-1. (Id. at 169).
Acting Chief McDonald stated confidently that the sole reason for her decision vis-à-vis
Blush was the fact that it operated a “strip joint” and admitted that she would not have taken such
action if it operated only as a bar. (Docket No. 22 at 158). To this end, on cross-examination,
she engaged in the following exchange with defense counsel:
9
The Court notes that the FOP has filed a grievance against the City challenging Chief McDonald’s action.
(Id. at 71-72, 184). As of the date of the Court’s hearing, April 25, 2013, the grievance procedure remained pending
and the Court has not been advised by the parties that the action has since concluded. (Id. at 184).
21
Q. So if I take adult entertainment outside of -- if I were to remove
adult entertainment from my client’s facility, would you agree that
it is nothing more than your typical bar or night club?
A. Yes. If he closed the strip joint, then there wouldn't be an issue.
It would just be a bar.
Q. So the sole basis for your decision is because of the adult
entertainment?
A. That’s correct.
(Id.). In addition, Acting Chief McDonald admitted that she had received no complaints from
officers or from the public about having officers stationed at Blush specifically. (Id. at 158,
188). She also has never been to Blush on official duties as a City police officer or as a patron in
an unofficial capacity and thus has never observed any inappropriate or criminal behavior by
anyone at the facility. (Id. at 157, 182). She likewise agreed that Blush was not a nuisance bar
or in violation of any City zoning ordinances and admitted that Blush had no issues with
outstanding invoices or non-payment of the cost recovery fee to the City. (Id. at 158-59). Prior
to making her decision, Acting Chief McDonald conferred with a few higher commanders within
the Bureau who she said agreed with her decision but she did not advise the FOP of the
forthcoming action nor consult with the City’s Legal Department to obtain a legal review of
same. (Id. at 161-62, 164). She also did not conduct any independent research on her own about
whether the decision was appropriate. (Id. at 172). In addition, she acknowledged that the role
of the officers stationed at Blush consisted of only patrolling outside the establishment and that
they did not work inside the facility, unless called upon to enforce laws, as if they were on-duty.
(Id. at 155-156).
Based on her demeanor during her testimony and her explanation of the decision, it is
clear to the Court that Acting Chief McDonald has a strong personal distaste for adult
22
entertainment facilities like Blush. She repeatedly referred to the business as a “strip joint”
throughout her testimony, a somewhat derogatory reference which was not used by any of the
other witnesses at the hearing. (See generally Docket No. 22). Acting Chief McDonald also
offered little support for the foundation of her decision, stating that she made the decision based
on her knowledge of the types of activities that take place at “strip clubs,” but admitted that she
had never been inside any “strip club” and that her knowledge about “strip clubs” was obtained
from discussions with her partner, information she had seen or heard in the media and other
reading materials. (Id. at 182, 189). When challenged on these points during cross-examination,
she stated that most adults have an understanding of what goes on at a “strip club,” without any
further explanation. (Id.).
In addition, she explained to the Court her unsuccessful efforts to have former Police
Chief Nate Harper deny another adult business’s application for participation in the secondary
employment program a few years ago. (Id at 149-50). In that instance, she recommended that
Chief Harper deny the application of “Controversy,” a “strip club” which was formerly located
on Carson Street in the West End, because the surrounding communities had fought the
placement of the club in that location. (Id.). Acting Chief McDonald believed that because of
the considerable opposition to the club, that City police officers should not be working off-duty
details there. (Id.). Chief Harper overruled her recommendation and permitted City officers to
work off-duty secondary employment details at Controversy until it closed for business reasons a
few years ago. (Id.).
Defendants also introduced some additional evidence concerning their position, including
the IACP Model Policy and two news articles. Def. Exs. B-D. Although the City has pointed
out similarities between the language of the IACP Model Policy and Order 29-1, Acting Chief
23
McDonald testified that she had not read the IACP Model Policy since around the time it was
issued in 1996 and therefore had not relied on it reaching her decision. (Docket No. 22 at 13940). Lieutenant Ford confirmed that she had not referenced the IACP Model Policy prior to the
decision terminating Blush’s approved status. (Id. at 124-25). Acting Chief McDonald further
advised that she could not recall if she specifically read the two articles which were submitted
prior to sending the letter to Blush. (Id. at 137). She did, however, have conversations with
news reporters who had questioned her regarding why the City of Pittsburgh permitted its
officers to work details at “strip clubs” while other cities, including Honolulu and New Orleans,
among others referenced, did not. (Id. at 137). Aside from the references in the news articles,
there is no evidence before the Court which suggests that the City or the Acting Chief contacted
the agencies in those cities to determine if the reporting of the restrictions placed on off-duty
work of officers there was accurate.
(See Docket No. 22).
Acting Chief McDonald also
admitted during cross-examination that she was unaware if any cities permitted officers to work
details at “strip clubs.” (Id. at 164-65). Instead, she suggested that a study of the policies
employed by cities across the country is in the process of being completed as part of a broader
review of the Bureau’s Secondary Employment Program as a whole.10 (Id.). However, she
admitted that she had not yet seen any of the results of the pending study. (Id.).
Acting Chief McDonald also testified that she had received some public support for her
10
Defendants also sought to introduce considerable testimony concerning the problems with crowd control
and crime in the South Side entertainment district and the City’s planned response to same. (Docket No. 22 at 14246). Acting Chief McDonald testified that a pilot program is scheduled to be initiated in the summer months which
would change how the Secondary Employment Program operates in that area. (Id.). She explained that during the
pilot program, the off-duty officers would be hired by a pool of South Side bars to conduct foot patrols in the area
rather than to be stationed at a post outside each bar. (Id.). She testified that this would provide greater police
presence in the South Side and may be more effective in deterring crime. (Id.). As the Court held at the hearing, the
evidence concerning the South Side is not directly relevant to the instant matter which concerns the administration
of the Secondary Employment Program at Blush in the Cultural District. (Id. at 146). The evidence presented
demonstrates that Blush is the only business in the area which is presently participating in the program and the
witnesses did not testify that a similar pilot program was scheduled to be initiated in the Cultural District. (Docket
No. 22 at 37-8, 142-46).
24
decision to terminate Blush’s approved status. (Id. at 180). She mentioned that she had been
thanked by members of the public for “taking a stand” in a number of instances including being
approached in the mall and while walking in the City. (Id.). She also claimed that she had
similar email communications supporting her decision with unnamed individuals, although no
such documents were presented to the Court. (Id.).
Ultimately, the decision to terminate Blush’s approved status as a secondary employer
was made based on Acting Chief McDonald’s personal opinion that the presence of officers at
Blush brought the Bureau in disrepute based on her interpretation of § 13.6 of Order 29-1. (Id. at
160-61). The evidence presented to the Court demonstrates that the sole basis for this decision
was the fact that Plaintiff’s dancers and headliners engage in expressive conduct protected by the
First Amendment, i.e., nude erotic dancing. (Id. at 155-56, 172). Acting Chief McDonald
expressed that her interpretation of the policy was correct and that the policy was previously
disregarded by the prior Chiefs of Police who had permitted officers to work details at Blush and
other adult entertainment businesses. (Id. at 179). She added that since she became Acting
Chief of Police, she had the authority and obligation to enforce her interpretation of the policy
and stop the practice of permitting officers to moonlight at “strip clubs.” (Id.). However, Acting
Chief McDonald’s opinion that a City police officer’s mere presence at the facility brought the
Bureau into disrepute was not shared by any of the other witnesses who testified at the hearing.
Plaintiff’s witnesses, including Officer McMullan, testified that they did not believe that the
presence of officers at the facility had any negative affect on the Bureau.
(Id. at 63).
Defendants’ other witness, Lieutenant Ford, was not directly questioned concerning whether she
felt that permitting secondary employment at Blush brought the Bureau in disrepute. (See
Docket No. 22). Instead, Lieutenant Ford testified consistently with Acting Chief McDonald
25
concerning their shared interpretation of Order 29-1, which allegedly supported the challenged
action in this case.
J. Acting Chief McDonald’s Interpretation of Order 29-1
To this end, Defendants’ witnesses explained that they believe that Order 29-1 grants the
Chief of Police or his/her designee with the authority to approve or deny applications from
entities seeking to become approved secondary employers and that secondary employment may
be denied under § 13.6 “at a location that may tend to bring the Bureau of Police into disrepute
or that may reduce the efficiency or usefulness of the officer as a member of the Bureau of
Police.” Pl. Ex. 1 at § 13.6. Ford and McDonald then noted that the phrase “bring the Bureau of
Police into disrepute” is undefined in the Policy and turned to § 14.1.4 which lists
“establishments that … provide entertainment or services of a sexual nature” as types of “outside
employment” which are not permitted because such employment “present[s] a threat to the status
or dignity of the police profession” to provide clarification of the undefined phrase.
No. 22 at 104-05).
In this regard, Acting Chief McDonald testified, as follows:
I think this definition [of section 14.1.4] further explains 13.6. It
was my understanding that a police officer could not work in these
establishments off duty on an outside employment condition. Why
would they be allowed to work in uniform in the same
establishments?
To me it didn't make any sense, and I think it reinforced -it further defined what 13.6 was actually saying, which was my
understanding of 13.6.
…
I'm saying that I don’t agree to the fact that it’s not relevant
to the secondary employment definition. I’m saying that 13.6,
which prohibits employment in any venue that would [bring]
disrepute to the Pittsburgh Bureau of Police is not authorized.
And it’s my understanding when you look down at outside
employment, that that explains it further, although it’s not under
26
(Docket
secondary employment, but I'm saying 13.6 is further explained by
this section.
…
I looked at [section 14.1.4] in consideration of my
interpretation, but I based my decision on the violation of the
policy based on 13.6.
(Docket No. 22 at 155-56).
K. Blush’s Operations After March 13, 2013 Decision
Bortz testified that he received Acting Chief McDonald’s March 13, 2013 letter on a
Thursday or Friday but that he had been advised by Officer McMullan a day or so earlier of the
decision to terminate services at his business. (Id. at 35-6). He credibly advised that upon
receipt of the letter from Acting Chief McDonald, he was “scared to death about St. Patrick’s
Day” because his business was left with little time to prepare before the St. Patrick’s Day parade
on Saturday of that week. (Id.). He stated that they were “lucky” that they did not have any
significant incidents at Blush during that weekend because they no longer had a City police
officer stationed at the business during peak hours. (Id.).
Blush has operated since the March 13, 2013 decision without supplementing its core
staff by hiring security guards or bouncers. (Id. at 22, 36, 50-1). Instead, Blush’s floor managers
have increased their presence on the floor in an effort to deter potential problems with patrons
and to secure the facility. (Id. at 50-1). Bortz and West testified that they feel less secure
without the police presence, especially at closing time around 2:00 or 2:30 a.m. (Id. at 24, 50-1).
Bortz also stated that he has observed an increase in aggressive panhandlers outside his business.
(Id. at 29-30). He and West both testified that they expect that Blush’s customers feel less secure
as well but Bortz indicated that the true effect of the lack of a police officer was unknown after
only a period of six weeks. (Id. at 30).
27
Despite same, the lack of a police presence at Blush on Friday and Saturday nights has
not affected its ability to draw customers or its financial performance. Indeed, Bortz explained
that that March and April of 2013 were “exceptional” months for his business given the number
of large events in the City during those months, including the St. Patrick’s Day Parade, the
Pittsburgh Pirates’ opening day, the NCAA Frozen Four and numerous Pittsburgh Penguins’
games. (Id. at 37). In addition, it is undisputed that there have been no reported criminal
incidents at Blush from March 13, 2013 until the date of the hearing, April 25, 2013. (Id. at 67).
Further, the parties agree that, despite the termination of secondary employment services, the
Pittsburgh Bureau of Police will respond to any 911 calls it receives from Blush as it does for
any other individual or business reporting criminal activity.
III. RELEVANT PROCEDURAL HISTORY
Plaintiff filed its Complaint against Defendants in the Court of Common Pleas of
Allegheny County on March 27, 2013. (Docket No. 1 at ¶ 1). Defendants removed the case to
this Court the following day. (Docket No. 1). Subsequently, on April 5, 2013, Plaintiff filed its
Motion for Temporary Restraining Order or, in the Alternative, Motion for Preliminary
Injunction and Memorandum of Law in Support of same. (Docket Nos. 3, 4, 5). Defendants
responded on April 12, 2013 by filing a Reply, Brief in Support and Exhibits. (Docket Nos. 8, 9,
10). The Court held a motion hearing on April 25, 2013 during which the parties presented
witness testimony and documentary evidence. (See Docket No. 22; Pl. Ex. 1-3; Def. Ex. B-D).
The parties then submitted proposed findings of fact and conclusions of law and supporting
briefs on May 15, 2013. (Docket Nos. 23-27). As the evidentiary record with respect Plaintiff’s
Motion has now closed and the matter has been fully briefed and argued, it is now ripe for
disposition.
28
IV. LEGAL STANDARD
The grant or denial of a temporary restraining order or a preliminary injunction is within
the sound discretion of the Court. See American Exp. Travel Related Services, Inc. v. SidamonEristoff, 669 F.3d 359, 366 (3d Cir. 2012). The primary purpose of preliminary injunctive relief
“is maintenance of the status quo until a decision on the merits of a case is rendered.” Acierno v.
New Castle County, 40 F.3d 645, 647 (3d Cir. 1994). “Status quo” refers to “the last, peaceable,
noncontested status of the parties.” Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir.
2004). The decision to issue a preliminary injunction and/or temporary restraining order is
governed by the same four-factor test, wherein Plaintiff must demonstrate:
“(1) that [it is] reasonably likely to prevail eventually in the
litigation and (2) that [it is] likely to suffer irreparable injury
without relief. If these two threshold showings are made the
District Court then considers, to the extent relevant, (3) whether an
injunction would harm the [defendants] more than denying relief
would harm the plaintiff[…] and (4) whether granting relief would
serve the public interest.”
K.A. ex rel. Ayers v. Pocono Mountain Sch. Dist., 710 F.3d 99, 105 (3d Cir. 2013) (quoting
Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 157 (3d Cir. 2002)); see also Trefelner
ex rel. Trefelner v. Burrell Sch. Dist., 655 F. Supp. 2d 581, 589 (W.D. Pa. 2009) (“The standard
used to evaluate whether the issuance of a temporary restraining order is warranted is the same as
that used to evaluate whether the issuance of a preliminary injunction is appropriate.”). In
reaching its decision on the request for injunctive relief, the Court sits as both the arbiter of legal
disputes and trier of fact and is therefore tasked with resolving factual disputes and assessing the
credibility of witness testimony. See, e.g., Hudson Global Resources Holdings, Inc. v. Hill, Civ.
A. No. 07-132, 2007 WL 1545678, at *8 (W.D. Pa. May 25, 2007) (“A court considering
29
whether to grant a preliminary injunction may assess the credibility of witnesses testifying before
it at a preliminary injunction hearing, and base its decisions on credibility determinations.”).
V. DISCUSSION
Plaintiff maintains that Acting Chief McDonald’s decision to terminate its long-time
status as an approved secondary employer under the Bureau’s Secondary Employment Program
due to her opinion that the presence of officers at Blush tends to bring the Bureau of Police into
disrepute plainly infringes on its asserted rights under the Federal and Pennsylvania
Constitutions. (Docket Nos. 3-5, 25-26). Defendants contend otherwise and suggest that Acting
Chief McDonald was granted considerable discretion to make this decision based on her
allegedly reasonable interpretation of an internal, non-public Bureau Policy, i.e., Order 29-1,
which had never been produced to Plaintiff prior to this litigation.
(Docket Nos. 8-9, 23-24).
However, Defendants admit that the sole basis for the Acting Chief’s decision is the type of
business that Blush operates and the fact that its dancers engage in nude, erotic dancing which
constitutes expressive conduct protected by the First Amendment to the Constitution and Article
I, Section 7 of the Pennsylvania Constitution. (Id.). Defendants likewise concede that the
Acting Chief targeted only adult entertainment businesses, i.e., Blush and Cheerleaders, for such
action and would not have terminated Blush if the business discontinued the adult entertainment
at the facility and operated only its bar. (Id.). Defendants also acknowledge that Blush was not
provided with a pre-deprivation or a post-deprivation hearing with respect to the termination of
its status as an approved secondary employer and denial of the ability to continue to participate
in the program. (Id.).
In this Court’s estimation, and for the reasons that follow, Plaintiff has presented
sufficient evidence to demonstrate that it is likely to prevail on its constitutional claims alleging
30
violations of its rights to free speech and equal protection, and while Defendants have identified
a significant or important governmental interest possessed by both the Chief of Police and the
City in regulating the off-duty conduct of City police officers engaged in secondary employment
details, wherein they are dressed in their full uniforms, armed with their Bureau-issued weapons
and are expected to make full use of their arrest powers as if they were on-duty, Defendants have
not presented legally sufficient evidence to justify the purely discriminatory governmental action
taken by Acting Chief McDonald against Plaintiff. See K.A., 710 F.3d at 105. Therefore, the
Court will enter a preliminary injunction and return the parties to the status quo of their
relationship prior to the issuance of Acting Chief McDonald’s decision until this case can be
fully adjudicated on the merits. Acierno, 40 F.3d at 647. The Court now turns to its analysis of
the relevant factors, starting with whether Plaintiff is likely to succeed on the merits of its claims.
A. Likely to Succeed on the Merits
To establish a reasonable probability of success on the merits, the
moving party must produce sufficient evidence to satisfy the
essential elements of the underlying cause of action. See Punnett v.
Carter, 621 F.2d 578, 582–83 (3d Cir. 1980); McCahon v. Pa. Tpk.
Comm’n, 491 F. Supp. 2d 522, 527 (M.D. Pa. 2007). Whether
success is likely requires examination of legal principles
controlling the claim and potential defenses available to the
opposing party. See BP Chems. Ltd. v. Formosa Chem. & Fibre
Corp., 229 F.3d 254, 264 (3d Cir. 2000). The mere possibility that
the claim might be defeated does not preclude a finding of
probable success if the evidence clearly satisfies the essential
prerequisites of the cause of action. Highmark, Inc. v. UPMC
Health Plan, Inc., 276 F.3d 160, 173 (3d Cir. 2001) (citing 11A
Wright et al., supra § 2948.3).
Stilp v. Contino, 629 F. Supp. 2d 449, 457 (M.D. Pa. 2009) aff'd and remanded, 613 F.3d 405
(3d Cir. 2010).
Plaintiff’s federal constitutional claims are brought pursuant to 42 U.S.C. § 1983, which
provides that:
31
[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress ....
42 U.S.C. § 1983. This statutory provision “does not create substantive rights,” but instead
“provides a remedy for the violation of rights conferred by the Constitution or other statutes.”
Maher v. Gagne, 448 U.S. 122, 129, n. 11, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980). In order to
establish a claim under the statute, a plaintiff “‘must demonstrate a violation of a right secured
by the Constitution and the laws of the United States [and] that the alleged deprivation was
committed by a person acting under color of state law.’” Kneipp by Cusack v. Tedder, 95 F.3d
1199, 1204 (3d Cir.1996) (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.
1995)). Thus, a plaintiff cannot prevail without establishing an underlying violation of a federal
constitutional or statutory right. Collins v. City of Harker Heights, 503 U.S. 115, 119, 112 S.Ct.
1061, 117 L.Ed.2d 261 (1992) (remarking that § 1983 “does not provide a remedy for abuses that
do not violate federal law”). “Section 1983 ‘itself contains no state-of-mind requirement
independent of that necessary to state a violation’ of the underlying federal right.” Board of
County Commissioners v. Brown, 520 U.S. 397, 405, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)
(quoting Daniels v. Williams, 474 U.S. 327, 330, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). The
remedies available under section 1983 include prospective relief such as an injunction
prohibiting future violations of federal law and a declaration that such state action violates
federal law. See Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).
Plaintiff’s state constitutional claim is not cognizable under § 1983 because it is a statute
designed to protect federal rights and may not be used by litigants as a vehicle to enforce
32
provisions of the Pennsylvania Constitution. See 42 U.S.C. § 1983; see also Collins, 503 U.S. at
119. “No Pennsylvania statute establishes, and no Pennsylvania court has recognized, a private
cause of action for damages under the Pennsylvania Constitution.” Pocono Mountain Charter
Sch. v. Pocono Mountain Sch. Dist., 442 F. App'x 681, 687 (3d Cir. 2011) (citing Jones v. City of
Philadelphia, 890 A.2d 1188, 1216 (Pa. Cmmwlth Ct. 2006) (“[N]either Pennsylvania statutory
authority nor appellate case law has authorized the award of money damages for violation of the
Pennsylvania Constitution.”)). However, Pennsylvania courts and the United States Court of
Appeals for the Third Circuit have recognized that a plaintiff may maintain a successful cause of
action directly under the provisions of the Pennsylvania Constitution for equitable remedies such
as injunctive and declaratory relief. See Pocono Mountain Charter Sch., 442 F. App’x at 688
(citing Moeller v. Bradford County, 444 F. Supp. 2d 316, 320–21 (M.D. Pa. 2006) (“[I]t is well
settled that individual plaintiffs may bring suit for injunctive relief under the Pennsylvania
Constitution”) and Jones, 890 A.2d at 1216 (“[O]ther remedies, such as declaratory or injunctive
relief ... are ... remedies under the Pennsylvania Constitution.”)).
Plaintiff’s claims and the defenses that have been raised to same must therefore be
individually evaluated under the particular provisions of the Federal and Pennsylvania
Constitutions, to which the Court now turns.
1. First Amendment Claim
Plaintiff’s initial claim arises under the First Amendment to the Constitution of the
United States. In the context of a First Amendment challenge, “[t]he most significant and,
indeed, the dispositive prong of the preliminary injunction analysis ... is whether [Plaintiff] bore
[its] burden of establishing that [it] had a reasonable probability of succeeding on the merits....”
ACLU v. Ashcroft, 322 F.3d 240, 250–51 (3d Cir. 2003). The First Amendment provides:
33
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press, or the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances.
U.S. Const., Amend. I. The parties agree that Plaintiff’s business features nude, erotic dancing
by “dancers” and “headliners” and that these activities are protected by the First Amendment as
expressive speech. See City of Erie v. Pap’s A.M., 529 U.S. 277, 120 S. Ct. 1382, 146 L. Ed. 2d
265 (2000).
However, the parties dispute whether Acting Chief McDonald’s decision to
terminate Blush’s approved secondary employer status and her further directive that City of
Pittsburgh police are prohibited from working off-duty security details at adult establishments
infringe on Plaintiff’s rights protected by the First Amendment. (Docket Nos. 3-5, 8-9, 23-26).
Before addressing these matters, the Court must examine the nature of the relationship
between the parties and the type of governmental action which is challenged by Plaintiff in this
case because the parties also disagree on the level of deference that should be given to the
challenged governmental action. (See id.). The parties’ disputes are understandable because the
issues raised appear to be novel and the Court is unaware of any prior decisions which address a
factual scenario similar to the case at bar.
Plaintiff contends that the Acting Chief’s decision terminating its ability to hire off-duty
officers for secondary employment details is akin to a number of government benefit cases
wherein little deference is granted to the government for taking unconstitutional sovereign action
such as denying an individual’s entitlement to government benefits for engaging in protected
speech. See e.g., Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972);
Elrod v. Burns, 427 U.S. 347, 359, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976); Speiser v. Randall,
357 U.S. 513, 78 S. Ct. 1332, 2 L. Ed. 2d 1460 (1958). Defendants’ view is that the case is more
34
properly analyzed as a personnel matter in the employer-employee context wherein the
government is granted great deference to control the conduct of its employees, see Pickering v.
Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811
(1968), or, alternatively, that the government action in this case at most indirectly infringes on
Plaintiff’s First Amendment rights and should be evaluated under United States v. O’Brien, 391
U.S. 367, 377, 88 S. Ct. 1673, 1679, 20 L. Ed. 2d 672 (1968). The Court is also aware of a third
line of cases addressing the First Amendment rights of government contractors, see Board of
County Com’rs, Wabaunsee County, Kan. v. Umbehr, 518 U.S. 668, 678, 116 S.Ct. 2342, 135
L.Ed. 2d 843 (1996); see also O'Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 116
S.Ct. 2353, 135 L.Ed.2d 874 (1996), pursuant to which the balancing test set forth in Pickering is
adapted to the facts and circumstances of the contractual relationship between the government
and contractor.
In this Court’s estimation, the undisputed evidence establishes that, prior to March 13,
2013, the parties were engaged in an ongoing and long-standing commercial relationship
whereby the Bureau was acting as a service provider and Plaintiff was a procurement contractor
paying for government services. (Docket No. 22 at 17, 31, 36, 149-51, 176-77). It is likewise
uncontested that the Bureau is the only service provider which is able to offer the secondary
employment services of City police officers to businesses within the City limits. (Id. at 181,
185). Further, the parties largely agree that the services provided by these officers are superior to
any comparable services offered by private security companies because City police officers
provide security for businesses in full police uniforms, carry Bureau-issued weapons and are
expected to make full use of arrest powers, as needed, whereas private security guards are not
City police offices, have no arrest powers and must call 911 like any other citizen to effectuate
35
an arrest of an individual alleged to have committed a crime. (Id. at 18-19, 59-63, 151, 181-82,
197). While the nature of the services provided contain some elements of the entitlements
discussed in the government benefits cases, and the case also involves a concurrent restriction
placed by the government-employer on its personnel, it remains that the secondary employment
services are provided by the City to private entities under a contractual agreement in exchange
for financial compensation and that such services are provided in addition to general police
services provided by the City to all members of the public and businesses.
Given same, the
Court finds that this case is more properly evaluated initially under the rubric of the government
contractor cases such as Unbehr and O’Hare rather than the government benefits cases or
employer-employee cases argued by the parties. See McClintock v. Eichelberger, 169 F.3d 812,
817 (3d Cir. 1999) (“Protection of an independent contractor with a pre-existing commercial
relationship with the public entity from retaliation by reason of his [protected activities] plainly
protects his First Amendment rights.”).
Under this precedent, it is well-settled that the government is able to terminate preexisting service contracts with independent contractors; however, it may not generally terminate
such relationships in retaliation for the contractor’s engaging in activities protected by the First
Amendment. See Umbehr, 518 U.S. at 678; see also O'Hare Truck Serv., Inc., 518 U.S. at 116.
While the government may escape liability by demonstrating that it took the challenged action
for reasons unrelated to the plaintiff’s protected speech, if the plaintiff establishes that the
government terminated its pre-existing contractual relationship for discriminatory reasons, the
burden shifts to the government to justify its termination decision.
See Umbehr, 518 U.S. at
678, 685. The level of deference granted to the government’s decision is a fact-based inquiry
wherein the Court must balance the interests of the parties by examining the contractual
36
relationship and the nature of the government action.
Id. at 678.
If the government is
determined to be exercising its sovereign power against the plaintiff, its decision must pass strict
scrutiny.11 Id. If the governmental action is instead more properly characterized as exercising its
contractual power, more deference is “due to the government’s reasonable assessments of its
interests as contractor.” Id. (emphasis in original).
In this case, Defendants are not actively regulating Blush’s conduct (including the nude,
erotic dancing that takes place at the facility) or imposing any sovereign action on Blush.12
Rather, Acting Chief McDonald took action pursuant to a contractual agreement between the
parties when Blush’s approved secondary employer status and ability to continue to participate in
the program was terminated. Accordingly, the Court must weigh the government’s legitimate
interests under the contract against Plaintiff’s free speech interests. See Umbehr, 518 U.S. at
685.
11
Under a strict scrutiny analysis, the government action will only be upheld if it: (1) serves a compelling
governmental interest; (2) is narrowly tailored to achieve that interest; and (3) is the least restrictive means of
achieving that interest. See ACLU v. Mukasey, 534 F.3d 181, 190 (3d Cir. 2008). Under an intermediate scrutiny
analysis, the government must demonstrate a “substantial governmental interest” in the action and rational basis
review requires that a law should be upheld if the government can articulate a rational basis for its enactment. See
Free Speech Coal., Inc. v. Attorney Gen. of U.S., 677 F.3d 519, 534 (3d Cir. 2012).
12
The Court recognizes that the Supreme Court has commented that the expressive conduct of nude, erotic
dancing is “within the outer ambit of First Amendment protection,” but it is protected nonetheless. See City of Erie,
529 U.S. at 289. The Court understands that that content-neutral regulations of protected expressive conduct are
generally evaluated under the intermediate scrutiny test set forth in O’Brien, 391 U.S. at 377 and Barnes v. Glen
Theatre, Inc., 501 U.S. 560, 567 (1991). Under this test, a content-neutral law proscribing expressive conduct is
justified if:
1) it is “within the constitutional power of the Government”; 2) it “furthers an
important or substantial governmental interest”; 3) “the governmental interest is
unrelated to the suppression of free expression”; and 4) “the incidental
restriction on alleged First Amendment freedoms is no greater than is essential
to the furtherance of that interest.”
181 S. Inc. v. Fischer, 454 F.3d 228, 233 (3d Cir. 2006) (quoting Barnes, 501 U.S. at 567, 111 S.Ct. 2456, which
quoted O'Brien, 391 U.S. at 377, 88 S.Ct. 1673). Although the O’Brien test is not directly applicable here because
the challenged governmental action is the termination of a contractual relationship with a government contract rather
than a sovereign act of regulation, the Court has considered same to the extent that it informs its analysis of the
weight to be given to the parties’ respective interests.
37
At the hearing, Acting Chief McDonald testified unequivocally that she terminated
Blush’s status as an approved secondary employer and denied it the ability to continue to hire
officers for secondary employment details based solely on the fact that it operates a “strip joint,”
where its dancers engage in nude, erotic dancing which is protected as expressive conduct under
the First Amendment. (Docket No. 22 at 158). She also admitted, among other things, that
neither Blush nor Officer McMullan had acted in any manner outside the scope of the Bureau’s
policies and procedures such that termination of Blush’s secondary employer status was
warranted for some other reason. (Id. at 155-59, 182). The United States Court of Appeals for
the Third Circuit has observed that a First Amendment retaliation claim is always actionable,
even when the alleged retaliatory act is “relatively minor” or “trivial,” if it can be proven that the
circumstances “would be sufficient to deter a person of ordinary firmness from exercising his or
her free speech rights.” O’Connor v. City of Newark, 440 F.3d 125, 127-28 (3d Cir. 2006)
(internal quotation omitted). This “deterrence threshold” is “very low” and is met “by all but
truly de minimis violations.” Id. at 128. The Court is persuaded that based on Acting Chief
McDonald’s admissions and the termination of the contract, which is certainly more than a de
minimis violation, Plaintiff has presented sufficient evidence under Umbehr and O’Hare to shift
the burden to Defendants to introduce evidence to justify the termination of Blush’s contract due
to its exercise of rights protected under the First Amendment. See Umbehr, 518 U.S. at 678,
685.
Defendants’ justification of the decision is essentially two-fold: first, that the Chief of
Police and the City have a compelling government interest in regulating the off-duty conduct of
City police officers, including their participation in off-duty secondary employment details at
certain locations; and, second, that the act of terminating Blush’s secondary employer status was
38
supported by Bureau Policy, i.e., Order 29-1. (Docket Nos. 8-9, 23-24). Defendants suggest that
their interests outweigh Plaintiff’s need for the secondary employment services of off-duty City
police officers at its facility such that Plaintiff cannot demonstrate that it is reasonably likely to
succeed on the merits of its First Amendment claim. (Id.). In this Court’s estimation, the
evidence presented by Defendants to this point is insufficient to conclude that Acting Chief
McDonald’s exercise of purported contractual rights by terminating Blush’s secondary
employment status was supported by the parties’ contract or the Bureau’s Policy and the
evidence further fails to adequately demonstrate that the presence of officers working off-duty
secondary employment details at Blush actually brought disrepute upon the Bureau as Acting
Chief McDonald opined.
The parties do not meaningfully dispute that the Bureau and Chief of Police have a
significant or important governmental interest in regulating the off-duty conduct of City police
officers. (See Docket Nos. 3-5, 8-9, 23-26). To this end, it is well within the power afforded to
the Bureau and Acting Chief McDonald to limit all off-duty employment of City police officers,
or to the extent it permits same, proscribe reasonable limitations on such off-duty employment,
as has been done by the Bureau under Order 29-1. See Rhodes v. Smith, 273 S.C. 13, 15, 254
S.E.2d 49, 50 (1979) (“Regulations prohibiting [a]ll outside employment [of police officers]
have been upheld.”) (citations omitted); see also State Troopers Non-Commissioned Officers
Ass’n of New Jersey v. New Jersey, 399 F. App'x 752, 755 (3d Cir. 2010) (citations omitted)
(“Several courts have recognized the government’s interest in preserving public trust as a
legitimate objective underlying restrictions on secondary employment.”). Subject to certain
terms and conditions set forth therein, Order 29-1 permits City police officers to work secondary
employment details for private entities whereby they effectively act as City police officers
39
stationed outside a private business. See Pl. Ex. 1 at § 2.1 (secondary employment is “[a]ny
employment of a member by a private entity that is conditioned on the actual or potential use of
law enforcement powers by the police officer employee.”). Given that the role of a police officer
is to serve and protect the public and the authority vested in them to do so, including the power
to make arrests, our society demands that police officers be held to a higher standard than
ordinary citizens in many matters, particularly when dressed in the official uniform and wearing
the badge of the police force. See e.g., Lodge No. 5 of Fraternal Order of Police ex rel.
McNesby v. City of Philadelphia, Civ. A. No. 11-3256, 2013 WL 638615, at *11 (E.D. Pa. Feb.
21, 2013) (“Because police are vital to protecting the public’s safety and are granted the power to
make arrests and use necessary force to carry out that duty, they must be held to a higher
standard of conduct than other City employees, which may include broader restrictions on First
Amendment activity.”); Faust v. Police Civil Serv. Comm’n of Borough of State Coll., 22 Pa.
Cmwlth. 123, 128, 347 A.2d 765, 768 (Pa. Cmwlth. Ct. 1975) (“police officers are held to a
higher standard of conduct than other citizens, including other public employees.”). Therefore,
the Bureau and Acting Chief clearly have an important or substantial governmental interest in
regulating the conduct of City police officers who are engaged in off-duty secondary
employment details as a method to preserve the public trust and to manage its personnel as
employer.
However, the Defendants’ important or substantial interest in regulating the conduct of
City police officers is not squarely at issue when they enter the marketplace and contract with
third parties to act as a provider of these services. See Umbehr, 518 U.S. at 678, 685. Thus, the
governmental interests in the present matter must be determined from the facts and
circumstances of the contractual relationship between the Bureau as the government service
40
provider and the third party purchaser of such services, Blush. Id. In this Court’s estimation, the
present record is inadequate to demonstrate that the Acting Chief’s actions were made in
accordance with the terms of the parties’ long-standing commercial relationship.
The primary justification for the Acting Chief’s decision which has been advanced by
Defendants is that such action was authorized by the Bureau’s Policy on Secondary
Employment. (Docket Nos. 23-24). Acting Chief McDonald’s interpretation of Order 29-1,
which was shared at least by Lieutenant Ford, is that the presence of officers in a secondary
employment capacity at an adult entertainment establishment violates the Bureau’s Policy.
(Docket No. 22 at 155-56). More specifically, they opine that the Chief of Police is granted
discretion to approve or disapprove of applications of entities to become secondary employers
and that under § 13.6 of Order 29-1 “secondary employment” may be denied at any location
which the Chief determines “may bring the Bureau into disrepute.” (Id.). They further reason
that because § 14.1.4 specifically restricts officers from working “outside employment” at adult
establishments, that § 13.6 should be interpreted to prevent secondary employment at adult
establishments as well. (Id.). Having fully considered the matter, the Court does not believe that
the evidence presented at the hearing is sufficient to demonstrate that Plaintiff agreed to be
bound by § 13.6 of Order 29-1 and, alternatively, even if Plaintiff was bound by all of the
provisions of Order 29-1, the proper interpretation of Order 29-1 does not grant the Chief of
Police the specific authority to unilaterally terminate the status of a previously approved
secondary employer for any reasons aside from non-payment of the necessary cost recovery fee
or perhaps acts of malfeasance or wrongdoing which otherwise violate the terms of the policy.
With respect to the Court’s finding that the evidence fails to demonstrate that Plaintiff
was bound by Order 29-1, the record establishes that the parties’ commercial relationship began
41
in 1966 and was maintained for many years without any written agreement. (Docket No. 22 at
17, 103-04, 151-52). However, since at least 2007, the parties have formalized their agreement
in writing by virtue of an application/agreement form which is executed by Plaintiff and sent to
the Bureau for approval by the Chief of Police. (Id. at 31, 179; Pl. Ex. 1 at § 7.2 (noting
requirement
that
secondary
employer
execute
“Secondary
Employment
Application
Agreement”). Most recently, Plaintiff submitted such a form to the Bureau in November of 2012
and it was approved by former Chief of Police Nate Harper, reauthorizing Blush to continue to
be an approved secondary employer. (Docket No. 22 at 176-77, 179). As such, the parties’
relationship was governed by the November 2012 version of the agreement on the date of the
termination, i.e., March 13, 2013.
While it is clear from the testimony that a written agreement between the parties exists, it
has not been admitted into evidence. (See Docket No. 19-1, Exhibit List). Therefore, the Court
is without the benefit of the actual terms and conditions of the agreement in rendering this
decision and must rely on the parties’ description of the relevant provisions. To this end,
Defendants’ witnesses testified that the prospective secondary employers must agree to be bound
by the policies and procedures of the Bureau in regard to secondary employment before the
application will be approved by the Chief of Police. (Docket No. 22 at 122-23, 176). The
witnesses also explained that the Bureau’s policies and procedures on these matters are set forth
in Order 29-1, which was admitted into evidence. See Pl. Ex. 1.
However, Defendants’ witnesses admitted that Order 29-1 is a non-public document
which is not fully disclosed to secondary employers, even upon request. (Docket No. 22 at 122,
176). They clarified that the policies and procedures are only summarized by the Bureau as a
part of an information packet that is sent out to the prospective secondary employer after it has
42
been approved. (Id.). Like the written agreement, the information packet sent to Blush was not
admitted into evidence nor was a standard information packet. (See Docket No. 19-1, Exhibit
List). Instead, Defendants’ witnesses explained generally that the summary of the policies and
procedures contained therein would necessarily include information concerning the payment of
the cost recovery fee to the City, the scheduling of off-duty officers for details and the payment
options available to the secondary employer to pay the wages due to the officers. (Docket No.
22 at 176). Importantly, Defendants’ witnesses did not testify that the summary provided to the
secondary employers generally or to Blush specifically would have included any information
stating that the Bureau could terminate the relationship or revoke its status as an approved
secondary employer based on § 13.6 of Order 29-1 or if the Chief of Police determined that the
presence of its officers at that location would “bring the Bureau into disrepute.” (Id.). There is
likewise no evidence that, prior to March 13, 2013, the Bureau had expressed any foreseeable
problems to Blush about the nature of Blush’s business and/or the fact that permitting City police
officers to work there in a secondary employment capacity was prohibited by the Bureau’s
policy. (Id. at 33). In all, the Court finds that based on the present record, there is no evidence
that Blush specifically assented to the terms of Order 29-1 which Acting Chief McDonald
enforced in terminating its approved secondary employer status.
The Court also disagrees with the Defendants’ proffered interpretation of Order 29-1, to
the extent that it is enforceable against Plaintiff. First, the Court does not believe that Order 29-1
is properly interpreted as granting the Chief of Police discretion to unilaterally revoke the
previously approved secondary employment status of an entity without just cause. See Pl. Ex. 1.
To this end, Order 29-1 is clear on its face that the Chief of Police is granted discretion to
approve or disapprove of a prospective secondary employer’s application to participate in the
43
program.
See Pl. Ex. 1 at § 7.2 (“The ‘Secondary Employment Application Agreement’ is
reviewed, approved or disapproved by the Chief of Police or his/her designee.”). However, the
Policy expressly references only a single basis for the termination of a previously approved
secondary employer’s status, i.e., non-payment of the applicable bills due to the City, including
the cost recovery fees. See Pl. Ex. 1 at §§ 7.4.1.2; 7.4.2.4; 7.4.3.5 (“Failure to pay this bill within
thirty (30) days of receipt may result in the revocation of the secondary employer’s approved
status.”). Defendants’ witnesses admitted that Blush was previously approved as a secondary
employer on numerous occasions and as recently as November of 2012, that it was current in its
account and never had any issues with non-payment of the applicable fees. (Docket No. 22 at
158-59, 176-77, 179). As such, there is no evidence presently in the record that Blush violated
the express terms of Order 29-1, insofar as the Court assumes that the evidence is sufficient that
Blush agreed to be bound by same.
Second, the Court is not persuaded that Blush violated any other aspect of the Policy
which would possibly support the termination of its approved secondary employment status.
Again, the evidence is undisputed that the City and/or Bureau have never found that Blush
violated any aspect of the Policy prior to March 13, 2013. (Id. at 33, 157-59, 188). The Bureau
has also never received any formal complaints concerning Blush and/or the officers who
provided secondary employment services there.
(Id. at 158, 188).
One of them, Officer
McMullan, testified credibly that he has adhered to the Bureau’s policies and procedures at all
times while he was serving at Blush in an off-duty capacity. (Id. at 63-5, 74). As there is no
evidence of any malfeasance by the individual officers or Blush’s staff, there is no independent
basis for the decision to terminate Blush’s secondary employment status.
44
Third, the Defendants’ proffered interpretation that sections 13.6 and 14.1.4.1 of Order
29-1 prohibit City police officers from working at an adult entertainment facility of the Policy is
not supported by the present record. (Id. at 155-56). In this regard, Defendants concede that the
past Chiefs of Police have never interpreted the Policy to prohibit secondary employment in the
manner they propose while they held the position13 and that Blush has been approved as a
secondary employer on multiple occasions. (Id. at 31, 176-77, 179). In addition, both sections
13.6 and 14.1.4.1 concern the ability of officers to work at certain locations and do not directly
address the status of an entity as an approved secondary employer. See Pl Ex. 1 at §§ 13.6,
14.1.4.1. Further, Acting Chief McDonald acknowledged that the primary provision supporting
her decision, § 14.1.4.1, did not apply to secondary employment details but governed only
outside employment. (Docket No. 22 at 155-56). While Acting Chief McDonald stated that it
did not “make sense” to her why the Bureau would permit officers to work in a secondary
employment capacity at an adult entertainment facility but would not permit them to work there
in an outside employment capacity, (see id.), the credible testimony at the hearing established
that there are fundamental differences between outside employment and secondary employment
under the policy such that Plaintiff is reasonably likely to succeed in its claim challenging her
action.
To this end, the off-duty outside employment of officers is basically a second, non-law
enforcement position where officers act as normal employees of those businesses rather than as
City police officers. (See Pl. Ex. 1 at §§ 2.2, 14.0, et seq.; Docket No. 22 at 119, 149, 155-56,
13
Acting Chief McDonald recounted that she recently spoke to former Chief of Police Robert McNeilly and
he advised her that he did not know that officers had been working secondary employment details at “strip clubs”
and that he would have stopped the practice if he had been aware while he was Chief. (Docket No. 22 at 150).
There was no objection to this answer but it is classic hearsay. In any event, it seems incredible to the Court that
Order 29-1 was developed during Chief McNeilly’s tenure, that as Chief he was required to approve all applications
for approval but that he was unaware of the details at “strip clubs,” which, again, had been a common practice since
at least 1966.
45
194). Sergeant LaPorte stated that outside employment would include working in a retail
position at Home Depot or Giant Eagle and performing jobs stocking shelves or as cashiers
inside the premises of the businesses.
(Docket No. 22 at 194).
This type of off-duty
employment is not extensively regulated by the Bureau or Chief of Police. Pl. Ex. 1 at §§ 2.2,
14.0, et seq. Indeed, aside from the general definition of outside employment in § 2.2, the
policies for same are only mentioned in § 14.0 of Order 29-1. Id. Order 29-1 neither requires
the Chief of Police to approve an entity as an outside employer nor necessitates an officer to seek
permission from a commanding officer prior to engaging in such work. Id. Section 14.0
succinctly states that officers are permitted to engage in outside employment if: such
employment is not performed during normal work hours or interferes with police business; the
employment does not present a potential conflict of interest with the police department’s work;
and “the employment does not constitute a threat to the status or dignity of the police as a
professional occupation … [such as] [e]stablishments that … provide entertainment of a sexual
nature.” Pl Ex. 1 at §§ 14.0, et seq.
In contrast, off-duty secondary employment is extensively regulated by the Bureau and
Chief of Police as the remainder of the provisions in Order 29-1 detail substantial policies and
procedures governing same. See generally Pl. Ex. 1. Of note, all secondary employers must be
approved by the Chief of Police. Id. at § 7.2. The individual officers must also receive approval
from the Chief of Police to work secondary employment details and the Chief may deny
secondary employment to an officer at a location which may tend to bring the Bureau into
disrepute. Id. at §§ 3.1, 13.0, et seq. Among other things, the Policy restricts the number of
hours that an individual officer can work and sets the parameters of the type of duties which may
be performed during the detail. Id. at §§ 3.1, 5.0, 13.0, et seq. The permissible role of off-duty
46
officers who work details at facilities that serve alcohol, like Plaintiff’s Blush facility, is very
restricted. Id. at § 13.5. In this regard, Order 29-1, § 13.5, states generally that off-duty officers:
must work outside the business; may not “card” patrons to ensure that they are of age to enter the
establishment; are unable to conduct “pat downs,” or use electronic metal detection devices to
“wand” patrons entering the facility to determine if weapons are present; and are prohibited from
enforcing the businesses’ rules or acquiescing to directives by their staff. Id. At most, the policy
permits off-duty officers to be stationed directly outside the door of such a facility and to
“respond inside to handle any disturbances, crimes, etc., occurring in the establishment” in the
same manner they would as if they were on duty and patrolling in the area. Id.
In all, Order 29-1 prohibits a City police officer from working at Blush in an outside
employment capacity as a dancer, bartender or in some other capacity inside the establishment.
See Pl. Ex. 1 at §§ 14.0, et seq. It is clear that the policy-makers within the Bureau determined at
some point that having its police officers work inside an adult entertainment facility may
constitute a threat to the dignity of the police profession. Id. at § 14.1.4.1. Based on the present
record, it appears that the FOP did not oppose this restriction placed on its members to refrain
from working second jobs inside adult entertainment establishments as there is no evidence that
the FOP objected to this aspect of the Policy during its 15-day review period. (Docket No. 22 at
101). The reasons for this restriction remain unstated, aside from the fact that the IACP Model
Policy contains a similarly phrased restriction on “regular off-duty employment” which is
defined akin to outside employment under the Bureau’s Policy and the Bureau typically uses
such model policies to create its own policies. See Def. Ex. B.
But, whether the outside employment provisions of the policy infringe on Blush’s First
Amendment rights is not at issue in this litigation because Blush has not attempted to hire off-
47
duty officers to work inside its facility in any capacity. Instead, Blush seeks to continue to hire
off-duty officers to work outside the facility in a secondary employment capacity at his or her
post located on 9th Street (or within a lobby area during inclement weather) as it has done for a
number of years with the approval of the Chief of Police and this type of secondary employment
is simply not expressly barred by the Policy. The evidence produced by Defendants at the
hearing does not demonstrate otherwise.
To this end, Defendants rely on the present interpretations of the policy by Acting Chief
McDonald and Lieutenant Ford, neither of whom stated that they actually participated in the
drafting of the policy in question. (Docket No. 22 at 155-56). While both testified that they
looked to the outside employment provisions to provide a definition of what type of secondary
employment would bring the Bureau into disrepute, a phrase which is undefined in the policy,
they offered no more than their unsupported personal opinions of the policy language. (Id. at
155-56, 16-61, 172 (McDonald stating with respect to her decision that “[i]t was my opinion
based on my understanding of what strip clubs actually were.”)). They did not consult the City’s
Legal Department for clarification. (Id. at 161-62, 164). They conducted no additional research.
(Id. at 172). They also did not reference the IACP Model prior to making the decision. (Docket
No. 124-25, 139). However, even if they had, like Order 29-1, the IACP Model restricts only
regular off-duty employment at adult entertainment facilities but contains no corresponding
restriction on “extra-duty employment” which appears to be equivalent to secondary
employment under the Bureau’s Policy. See Def. Ex. B.
Fourth, even assuming that the decision was within the discretion of Acting Chief
McDonald, such discretion cannot be exercised in a discriminatory manner, absent a substantial
justification for the action. See Umbehr, 518 U.S. at 678, 685. While the Bureau and Chief of
48
Police have a substantial or important governmental interest in regulating the secondary
employment details of officers, Defendants have not demonstrated that they have a substantial or
important governmental interest in terminating Blush’s status as an approved secondary
employer based solely on the nature of its business. Id.
The mere facts that the Acting Chief of Police was questioned by reporters concerning
why off-duty officers were permitted to work at strip clubs and two op-ed pieces were published
by local newspapers questioning the practice, without more, are not sufficient to justify the
Acting Chief’s admittedly discriminatory termination of the contractual relationship. Indeed,
although the article published on Triblive.com references several other cities which may restrict
such off-duty employment at strip clubs, Defendants admitted no evidence that anyone at the
Bureau (or the City’s Legal Department, which was not consulted) followed-up with the
referenced law enforcement agencies to determine if the information in the articles was correct.
(See Docket No. 22).
Acting Chief McDonald merely stated that the Bureau is presently
studying the policies of other departments but conceded that she has not seen any of the results
of such study. (Id. at 164-65). She further told the Court that she had received support for her
decision prohibiting moonlighting at “strip clubs” from unnamed individuals who approached
her walking in the City and in the mall and possibly received emails to this effect from citizens,
although no such emails were admitted into evidence. (Id. at 180). While these communications
did not amount to formal complaints, based on her testimony, the Court understands that they
were received after the decision to terminate had already been made. (Id.). Further, the present
evidentiary record shows that City police officers have worked weekend secondary employment
details standing on 9th Street in downtown Pittsburgh in full view of the public for a period of
forty-eight years and Defendants have failed to present a formal complaint from a single citizen
49
questioning this practice. (Id. at 17, 158, 188). All told, there is simply not enough evidence to
justify the challenged action which was admittedly made purely for discriminatory reasons.
After carefully considering all of the evidence in the present record, the Court holds that
Plaintiff is likely to succeed on the merits of its First Amendment claim because Acting Chief
McDonald terminated its secondary employment status based solely on the fact that Plaintiff’s
dancers engage in expressive conduct protected by the First Amendment and Defendants have
not presented sufficient evidence to justify this decision. See Umbehr, 518 U.S. at 678, 685.
Accordingly, the Court will issue a preliminary injunction enjoining Defendants from
terminating the relationship in violation of Plaintiff’s First Amendment rights until this matter
can be fully litigated on the merits. See K.A., 710 F.3d at 105.
2. Pennsylvania Constitution Claim
Plaintiff also alleges that its rights to freedom of expression under Article I, § 7 of the
Pennsylvania Constitution have been infringed by the challenged decision and seeks a
declaration that its rights have been so violated and an injunction preventing similar violations in
the future. (Docket No. 1-1). The relevant portion of Article I, § 7, provides:
The free communication of thoughts and opinions is one of the
invaluable rights of man, and every citizen may freely speak, write
and print on any subject, being responsible for the abuse of that
liberty.
Pa. Const. art. I, § 7. The parties once again agree that the nude, erotic dancing which occurs at
Plaintiff’s business is protected by this provision of the Pennsylvania Constitution as expressive
speech. (Docket Nos. 3-5, 8-9, 23-26). Defendants raise similar arguments to this claim as they
did with respect to Plaintiff’s First Amendment claim. (Docket Nos. 8-9, 23-24).
While the protections afforded by the federal and Pennsylvania Constitutions are similar;
the Supreme Court of Pennsylvania has recognized that the Pennsylvania Constitution “‘provides
50
protection for freedom of expression that is broader than the federal constitutional guarantee.’”
Pap’s A.M. v. City of Erie (“Pap’s II”), 571 Pa. 375, 399 (Pa. 2002) (quoting Commonwealth,
Bureau of Professional & Occupational Affairs v. State Bd. of Physical Therapy, 556 Pa. 268,
728 A.2d 340, 343–44 (1999), and citing Insurance Adjustment Bureau v. Insurance Comm’r,
518 Pa. 210, 542 A.2d 1317, 1324 (1988)). Therefore, Plaintiff’s rights under the Pennsylvania
Constitution are at least as broad as those it possesses under the First Amendment and it possibly
has greater protection under the Pennsylvania Constitution. Accordingly, for the reasons stated
in the preceding section analyzing Plaintiff’s First Amendment claim, see § V.A.1, supra, the
Court also holds that Plaintiff is likely to succeed on the merits of its claim challenging the
termination of its secondary employer status and denial of future participation in the program
under Article I, § 7 of the Pennsylvania Constitution. See K.A., 710 F.3d at 105.
3. Equal Protection
Plaintiff next contends that Defendants are liable under an equal protection theory.
(Docket No. 1-1). The Equal Protection Clause of the Fourteenth Amendment prohibits a State
from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” U.S.
Const., Amend. XIV, § 1. This constitutional provision “embodies a general rule that States must
treat like cases alike but may treat unlike cases accordingly.” Vacco v. Quill, 521 U.S. 793, 799,
117 S.Ct. 2293, 138 L.Ed.2d 834 (1997). “The primary purpose of the Equal Protection Clause is
‘to secure every person within [a] State’s jurisdiction against intentional and arbitrary
discrimination, whether occasioned by [the] express terms of a statute or by its improper
execution through duly constituted agents.’” Whittaker v. County of Lawrence, 674 F.Supp.2d
668, 691 (W.D.Pa. 2009) (quoting Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445,
43 S.Ct. 190, 67 L.Ed. 340 (1923)) (brackets in original). If a law creates a classification that is
based upon a suspect or quasi-suspect class or burdens the exercise of a fundamental right, it
51
must be evaluated under strict or intermediate scrutiny. Id. at n.7. In contrast, a law that does
not fall within these categories including those that discriminate against a particular group which
is not a suspect or quasi-suspect class and “class of one” claims are evaluated under the rational
basis test, Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d
1060 (2000) (per curiam), pursuant to which laws are “presumed to be valid and will be
sustained if the classification drawn by the statute is rationally related to a legitimate state
interest.” City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439-40, 105 S. Ct.
3249, 87 L. Ed. 2d 313 (1985).
In addition, “[s]elective discriminatory enforcement of a facially valid law is
unconstitutional under the Equal Protection Clause.” Jewish Home of E. PA v. Centers for
Medicare & Medicaid Servs., 693 F.3d 359, 363 (3d Cir. 2012) (citations omitted). To establish
a selective enforcement claim, a plaintiff must prove that: (1) it was “treated differently from
other similarly situated individuals”; and (2) “that this selective treatment was based on an
unjustifiable standard, such as race, or religion, or some other arbitrary factor, … or to prevent
the exercise of a fundamental right.” Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005)
(quoting Holder v. City of Allentown, 987 F.2d 188, 197 (3d Cir. 1993)).
As is noted above, the Court has concluded that Plaintiff is likely to succeed on its First
Amendment claim as it has presented sufficient evidence to demonstrate that the challenged
action was taken solely for discriminatory reasons and was not substantially justified by the
evidence presented by Defendants at the hearing. See § V.A.1, supra. The evidence of record
also supports a finding that Plaintiff is likely to succeed in its Equal Protection claim, for many
of the reasons that have already been discussed. See id. In addition, the Court notes the
following.
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The Equal Protection violation claim in this case asserts that Plaintiff was treated
differently than other bars and restaurants that participate in the Bureau’s Secondary
Employment Program. (Docket No. 1-1). The undisputed evidence before the Court shows that
Plaintiff was indeed treated differently than other entities that are approved secondary employers
under the Policy. To this end, Acting Chief McDonald asserted that her decision to terminate
Plaintiff’s status was made based on § 13.6 of the Policy and she admitted that she did not
review all of the secondary employers presently participating in the program to determine if they
were acting in compliance with that provision. (Docket No. 22 at 155-56, 167-69). Instead, she
terminated Blush and Cheerleaders solely because they operated as adult entertainment
establishments without determining if any other entity was presently violating her interpretation
of the Policy.
(Id.).
As the Court has explained above, she did so without substantial
justification for the disparate treatment between these types of businesses or any evidence of
malfeasance, non-payment or any other potentially non-discriminatory reason and despite the
fact that both were previously approved as secondary employers by the former Chief of Police as
recently as November 2012. For these reasons, and the others previously expressed, Plaintiff is
likely to succeed on the merits of its Equal Protection claim. See K.A., 710 F.3d at 105.
4. Due Process
Plaintiff’s final claim alleges that Defendants have violated its rights to procedural due
process under the Fourteenth Amendment. (Docket No. 1-1). Defendants maintain that Plaintiff
does not have a constitutionally protected property right in its continued participation in the
Bureau’s Secondary Employer Program. (Docket Nos. 8-9, 23-24). The Due Process Clause of
the Fourteenth Amendment provides that “[n]o State shall ... deprive any person of life, liberty,
or property, without due process of law....” U.S. Const., Amend. XIV, § 1. This constitutional
provision provides individuals with “both substantive and procedural rights.” Albright v. Oliver,
53
510 U.S. 266, 272, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (plurality opinion). “[B]y barring
certain government actions regardless of the fairness of the procedures used to implement them,”
the Due Process Clause “serves to prevent governmental power from being used for purposes of
oppression.” Daniels, 474 U.S. at 331, 106 S.Ct. 662 (quoting Murray’s Lessee v. Hoboken
Land & Improvement Co., 59 U.S. 272, 277, 18 How. 272, 277, 15 L.Ed. 372 (1856)). “By
requiring the government to follow appropriate procedures when its agents decide to deprive any
person of life, liberty, or property, the Due Process Clause promotes fairness in such decisions.”
Daniels, 474 U.S. at 331, 106 S.Ct. 662. The “substantive” and “procedural” requirements of the
Due Process Clause are attributable to these distinct legal principles. United States v. Salerno,
481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).
“In any case involving a procedural due process claim, the first question for consideration
is whether the plaintiff has been ‘deprived’ of a constitutionally-protected liberty or property
interest.” Burns v. Alexander, 776 F. Supp. 2d 57, 79 (W.D. Pa. 2011) (quoting Whittaker v.
County of Lawrence, 674 F.Supp.2d 668, 693 (W.D. Pa. 2009)). In the context of state police
officers challenging their right to engage in off duty employment, the United States Court of
Appeals for the Third Circuit recognized that:
[t]he Fourteenth Amendment’s procedural due process component
does not protect every benefit in which employees claim an
interest. To establish a protectable property interest, a plaintiff
must show “more than an abstract need or desire for it. He must
have more than unilateral expectation of it. He must, instead, have
a legitimate claim of entitlement to it.” Bd. of Regents of State
Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548
(1972). Entitlements may be created expressly by state laws or
regulations or may arise from government policy or a “mutually
explicit understanding between a government employer and
employee.” Carter v. City of Philadelphia, 989 F.2d 117, 120 (3d
Cir.1993).
54
State Troopers Non-Commissioned Officers Ass’n of New Jersey v. New Jersey, 399 F. App'x
752, 755 (3d Cir. 2010).
The Court looks to state law to determine if an entitlement to a property right has been
established by virtue of the past practice between the Bureau and Plaintiff, an agreement between
the parties or the City’s Policy. See Piecknick v. Com. of Pa., 36 F.3d 1250, 1256 (3d Cir. 1994)
(quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548
(1972) (holding that property interests are “created and their dimensions are defined by existing
rules or understandings that stem from an independent source such as state law.”)). It is wellsettled under Pennsylvania law “that a contract for services having no specific term is terminable
at will.” Piecknick, 36 F.3d at 1256 (citations omitted). Further, the Court of Appeals has held
that such an “at will” contractual relationship is insufficient to demonstrate a federally protected
right guaranteeing the continued right to services supplied by the government. See id. In
addition, the Court of Appeals has recognized that “‘[l]ongevity alone’ does not create a property
interest.” State Troopers, 399 F. App’x at 755 (quoting Hadley v. Cty. of DuPage, 715 F.2d
1238, 1244 (7th Cir. 1983)). Further, the Court of Appeals has held that internal police bureau
policies are not the force of law and thus are insufficient to create enforceable constitutional
rights under the Due Process Clause in third parties not directly bound by them. See Piecknick,
36 F.3d at 1256-57.
In this Court’s opinion, whether Plaintiff is likely to succeed on the merits of its
procedural due process claim will necessarily rely on the terms and conditions of the parties’
written agreement because the lengthy business relationship between the parties alone is
insufficient to create a cognizable property interest under the Due Process Clause. See State
Troopers, 399 F. App’x at 755. Moreover, absent an agreement by the parties that Plaintiff will
55
be bound by same, Order 29-1 is likely insufficient to create a cognizable constitutional right in
Plaintiff by itself. See Piecknick, 36 F.3d at 1256-57. As is noted above, it is undisputed that the
parties’ relationship is governed by a written agreement; however this agreement was not
produced by the parties at the hearing and it likely remains in the custody and control of
Defendants. Therefore, the Court is without sufficient information to presently render a decision
that Plaintiff has established a right protected by the Due Process Clause which may support a
procedural due process claim. At any rate, given the Court’s prior findings that Plaintiff is likely
to succeed on the merits of its other claims, and the scope of the requested injunction is the same
with respect to all of its claims, this decision has no bearing on the potential issuance of the
preliminary injunction.
B. Irreparable Injury
The next step in the Court’s analysis is to determine whether Plaintiff will sustain
irreparable injury if preliminary injunctive relief is not awarded. See K.A., 710 F.3d at 105.
Because the Court has found that Plaintiff is likely to succeed on the merits of its claim arising
under the First Amendment, an analysis of the irreparable injury prong is fairly straightforward.
To this end, the Supreme Court held in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d
547 (1976), that “[t]he loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Id. at 373–74 (citing N.Y. Times Co. v. United
States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam)); see also K.A., 710
F.3d at 113 (quoting same); Swartzwelder v. McNeilly, 297 F.3d 228, 241 (3d Cir. 2002)
(quoting same).
However, despite this broad pronouncement, the Court of Appeals has
distinguished Elrod (at least in an non-precedential decision) and demanded some further proof
of irreparable injury prior to issuing a preliminary injunction on First Amendment grounds. To
56
this end, in Conchatta v. Evanko, 83 F. App’x 437, 442-43 (3d Cir. 2003), the Court of Appeals
affirmed the District Court’s denial of an injunction although it commented that the plaintiff had
made a “strong case” that the challenged statute was constitutionally overbroad. As the basis for
this decision, the Court of Appeals pointed to the fact that the plaintiff had presented no evidence
of economic harm (potential or otherwise) and also did not demonstrate that the law had ever
been enforced against it or that it was ever threatened with enforcement. Id.
Here, unlike Conchatta, the challenged governmental action of terminating the parties’
relationship has already taken place and the evidence of record has shown that there have been
some direct effects on Plaintiff’s operations on weekend evenings when the secondary employer
services were previously procured. (Docket No. 22 at 22, 24, 29-30, 36, 50-1). It is true that
Plaintiff has presented no evidence of economic harm as a result of its inability to hire off-duty
officers to provide secondary employment services at its businesses on weekends since the
decision to terminate its contract was made on March 13, 2013. (Id. at 37). Indeed, at the
hearing, Bortz explained that March and April were strong months for his business and that it did
very well financially during that time. (Id.). However, he also expressed that the loss of off-duty
police services caused him to see an increase in aggressive panhandlers bothering his customers
and he and Ms. West explained that they had a general sense of feeling less safe without the
added level of security provided by a uniformed police officer during their busiest days and
when closing the facility. (Id. at 24, 29-30, 50-1). They opined that their customers were
similarly affected by the lack of a police presence. (Id. at 24, 30, 50-1). But, the record is also
undisputed that there were no calls for police services emanating from Blush from March 13
until the hearing on April 25. (Id. at 67). In all, Bortz explained that the tangible effect of the
loss of secondary employment services on his business was unknown after only six weeks. (Id.
57
at 30).
While the Court acknowledges that the parties presented conflicting evidence at the
hearing concerning whether or not the secondary employment services are necessary to deter
crime at Blush given the low amount of reported criminal incidents there, which were described
as non-serious in nature, the evidence is sufficient to prove by a preponderance of the evidence
that Plaintiff’s First Amendment rights likely have been violated by government action that
terminated its contractual relationship solely based on its engaging in protected activities. See §
V.A.1, supra. As is noted above, retaliatory acts concerning even trivial or de mininis matters
are actionable and the terminated secondary employment services in this case clearly surpass this
low threshold. See O’Connor, 440 F.3d at 127-28. It is likewise undisputed that the Plaintiff
simply cannot procure the type of services offered by the Bureau from any other entity. (Docket
No. 22 at 181, 185). Thus, it has undoubtedly been irreparably harmed by the loss of the ability
to participate in the Bureau’s program since March 13, 2013. See Elrod, 427 U.S. at 373–74.
The evaluation of Plaintiff’s rights under the Pennsylvania Constitution and the Equal Protection
Clause of the Fourteenth Amendment rely on a similar analysis and any further discussion of
those claims would be purely academic in nature. As such, the Court finds that this factor
weighs in favor of issuing a preliminary injunction.
C. Balance of Harms
The Court’s evaluation of the balance of harms between the parties if a preliminary
injunction is issued enjoining the Defendants from terminating Blush’s approved secondary
employer status and prohibiting it from participating in the program also favors Plaintiff. See
K.A., 710 F.3d at 105. While the issuance of a preliminary injunction may in some fashion
impinge on the significant or important interests of the Bureau and the Acting Chief in
58
controlling the off-duty work of police personnel at certain locations, prior to the termination of
Blush’s secondary employer status, the parties maintained a long-standing and mutuallybeneficial commercial relationship for nearly five decades. (Docket No. 22 at 17, 158, 188).
Pursuant to this relationship, City police officers (including Officer McMullan and his father)
have worked in a secondary employment capacity at Blush without any significant incidents and
no reported policy violations. (Id.). Blush has timely paid the City for the secondary employer
services provided by these officers and will undoubtedly continue to pay any such necessary fees
when the relationship is reinvigorated on the prior terms of same. (Id. at 86, 158-59). Further,
the officers working secondary employment details at Blush will remain subject to the oversight
of the Bureau and the policies and procedures detailed in Order 29-1 much like officers working
details at any other bar or restaurant throughout the City which participates in the program. See
Pl. Ex. 1.
The preliminary injunction likewise would not prevent the Bureau, Acting Chief, City
Council members, the FOP and any other interested stakeholders from continuing their efforts to
study the Secondary Employment Program and possibly make significant changes to the same,
such as the pilot program in the South Side entertainment district which was described at the
hearing. See Swartzwelder, 297 F.3d at 242 (“While the preliminary injunction may impinge on
significant interests of the City, the preliminary injunction leaves the City free to attempt to draft
new regulations that are better tailored to serve those interests.”).
However, under the
preliminary injunction, Defendants will not be authorized to terminate Blush’s previously
approved secondary employer status for discriminatory reasons. On the other hand, as the Court
has already discussed at length, Plaintiff will be harmed if it cannot continue to participate in the
program solely because its business involves protected activities. Accordingly, the balancing of
59
the parties’ interests favors Plaintiff. See K.A., 710 F.3d at 105.
D. Public Interest
The Court of Appeals recognizes that injunctive relief is in the public’s interest when
governmental action is likely to be declared unconstitutional “because the enforcement of an
unconstitutional law vindicates no public interest.”
K.A., 710 F.3d at 114 (citing ACLU v.
Ashcroft, 322 F.3d 240, 251 n. 11 (3d Cir. 2003)). Likewise, the failure to intervene to enjoin
the likely unconstitutional termination of Blush’s contract is not in the interest of the public. See
id. In addition, the public interest is arguably furthered by Blush’s continued procurement of
secondary employment services on 9th Street in the Cultural District, an area of the City where
no other businesses are reportedly participating in the Secondary Employer Program. (Docket
No. 22 at 37-38). It cannot be reasonably argued that the increased police presence in the
Cultural District causes harm to the City when the officer’s presence alone deters crime and
protects members of the public and businesses in the surrounding area. (Id. at 59-60). In fact,
Officer McMullan offered credible testimony that while working the detail, he has often assisted
the surrounding businesses with criminal issues and even apprehended armed robbers who had
committed crimes at another establishment. (Id. at 61-62, 67, 72). Further, these additional
police services performed by Officer McMullan were all provided at the expense of Blush. (Id.
at 86). Accordingly, this factor also weighs in favor of Plaintiff. See K.A., 710 F.3d at 105.
E. Conclusion
For all of these reasons, the Court will exercise its discretion and issue a preliminary
injunction enjoining Defendants from terminating Blush’s approved secondary employer status
and prohibiting it from participating in the Secondary Employer Program. See id. As a final
matter, Plaintiff argues that it should not be required to post a bond as is generally required under
60
Rule 65(c) of the Federal Rules of Civil Procedure should a preliminary injunction issue in its
favor. See Fed. R. Civ. P. 65(c) (““[t]he Court may issue a preliminary injunction ... only if the
movant gives security in the amount that the court considers proper to pay the costs and damages
sustained by any party found to have been wrongfully enjoined or restrained.”). Defendants have
not specifically responded to these arguments. (Docket Nos. 8-9, 23-24). In any event, the
United States Court of Appeals for the Third Circuit has recognized that a District Court may
waive the requirement of the posting of a bond in certain circumstances, such as when the party
against whom the injunction is placed will not sustain a monetary loss. See Temple University v.
White, 941 F.2d 201 (3d Cir. 1991); see also Instant Air Freight Co. v. C. F. Air Freight, Inc.,
882 F.2d 797, 803-04, n.8 (3d Cir. 1989). Here, given that the effect of the Court’s Order will
return the parties to a position where Plaintiff will resume paying the City for secondary
employment services rendered at the same rates charged to all participants in the Secondary
Employer Program, and the lack of any opposition to the request to waive the bond, the Court
agrees that the imposition of a bond is inappropriate and will waive the requirement, as
unnecessary in this case. See id.
VI. CONCLUSION
Based on the foregoing, Plaintiff’s Motion [3] is GRANTED. An appropriate Order
follows.
s/Nora Barry Fischer
Nora Barry Fischer
U.S. District Judge
Date: June 17, 2013
cc/ecf: All counsel of record.
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