Fraternal Order of Police Penn. Lodge v. Twp. of Springfield

668 F.Supp.3d 375

FRATERNAL ORDER OF POLICE PENNSYLVANIA LODGE, et al., Plaintiffs, v. TOWNSHIP OF SPRINGFIELD, et al., Defendants.

CIVIL ACTION NO. 23-332-KSM

United States District Court, E.D. Pennsylvania

Filed April 6, 2023

Walter Stephen Zimolong, Zimolong LLC, Villanova, PA, James Joseph Fitzpatrick, III, Zimolong LLC, Wayne, PA, for Plaintiffs.

James J. Garrity, Brian Richard Elias, David M. Burkholder, Deborah R. Stambaugh, Wisler, Pearlstine, Talone, Craig, Garrity & Potash, Blue Bell, PA, Harry G. Mahoney, Rufus A. Jennings, Deasey Mahoney Valentini North, Ltd., Philadelphia, PA, for Defendants.

MEMORANDUM

Marston, District Judge

On January 27, 2023, Plaintiffs Fraternal Order of Police Pennsylvania Lodge ("PA FOP"), Springfield Township Police Benevolent Association ("PBA"), Officer Christian Wilbur, Officer Robert Baiada, and Officer Chris Calhoun (collectively, "Plaintiffs") filed a Complaint against Defendants the Township of Springfield, seven members of the Township Board of Commissioners in their official capacity, and the Township manager in his official capacity (collectively, the "Township"). (Doc. No. 1.) Plaintiffs argue that Township Resolution No. 1592, "A Resolution Prohibiting the Display of the Thin Blue Line American Flag on All Township Property," is facially unconstitutional under the First and Fourteenth Amendments of the United States Constitution, and they seek permanent injunctive relief barring its enforcement. (Id.)

The Township seeks to depose representatives of the PBA and PA FOP (collectively, the "Organizations") and ask about internal communications by and between members that discuss, among other things, the PBA's decision to adopt the Thin Blue Line American Flag as part of its logo, the PBA members' views on the Township's Board and Resolution 1592, and the Organizations' reasons for bringing this lawsuit. (See Doc. Nos. 25-1, 25-2.) The Organizations move for a protective order forbidding the Township from asking questions about these topics. (Doc. No. 25.) For the reasons discussed below, the motion for protective order is, in part, granted and, in part, denied as moot.

I. FACTUAL BACKGROUND

Viewing the allegations in the Complaint as true, the relevant facts are as follows.

A. The Thin Blue Line American Flag

This controversy centers around what the Court will refer to as the "Thin Blue Line American Flag," an American flag that is in black and white except for a single blue horizontal stripe:

Image materials not available for display.

For Plaintiffs, the flag "has come to represent a show of support for and solidarity with members of law enforcement." (Doc. No. 1 at ¶ 18; see also id. at ¶¶ 20, 22 (stating that the Organizations view the flag as representative of "the preservation of the rule of law, the protection of peace and freedom, the sacrifice of fallen law enforcement officers, and the dedication of law enforcement officers").) At a national level, the Fraternal Order of Police has passed a resolution that affirms its "support for the use of the Thin Blue Line [American] flag by law enforcement," and at a local level, individual members of the PA FOP have been known to wear pins, buttons, and clothing depicting the flag, and to put bumper stickers of the flag on their cars. (Id. at ¶¶ 19, 21; see also id. at ¶ 26 (alleging that individual members of the PBA similarly display the flag on clothing and bumper stickers and "[m]any members . . . wear a rubber replacement wedding ring that displays and depicts the Thin Blue Line [American] flag").) Likewise, the PBA has incorporated the Thin Blue Line American Flag into its logo:

Image materials not available for display.

This logo appears on the PBA's website, its merchandise, and at fundraisers and events hosted by the PBA, some of which take place on Township property. (Id. at ¶¶ 24-25, 28.) Finally, the three individual Plaintiffs—Officers Calhoun, Baiada, and Wilbur (collectively, the "Officer Plaintiffs")—are officers with the Township Police Department and members of the Organizations. (Id. at ¶¶ 3-5.) Each Officer Plaintiff "depicts and displays the Thin Blue Line [American] flag on his personal property" while on and off duty, and they wish to continue doing so. (Id. at ¶¶ 30-44.) The Officer Plaintiffs also allege that "members of the public" recognize them as police officers with the Township. (Id. at ¶¶ 34, 39, 44.)

While Plaintiffs revere the Thin Blue Line American Flag, many members of the public, including residents of Springfield Township, view it as a symbol of police brutality and racial animosity. (Doc. No. 1-5 at 1.) On October 26, 2022, Township Solicitor James Garrity, and Township Manager A. Michael Taylor, sent a cease-and-desist letter to the PBA about their use of the flag. (Doc. No. 1 at ¶ 45; see also Doc. No. 1-3.) In that letter, Mr. Garrity and Mr. Taylor explain that many Township residents had "express[ed] deep discontent and distrust of the PBA and even the Township's own police department, due to PBA's use of the flag which has become known as the 'Blue Lives Matter Flag.' " (Doc. No. 1-3 at 1.) They emphasize that the flag "has been at the center of the controversy between minority communities and law enforcement officials across the country," citing the "usurpation and display" of the flag by white nationalists. (Id.) Thus, they reason, "regardless of the history or original intent of the PBA in displaying" the flag, "[t]o many members of the Springfield Township community, the utilization of the [Thin Blue Line American] Flag unnecessarily exacerbates the ongoing conflict between police officers and the communities they serve." (Id. at 2-3.) The letter ends by directing the PBA to either discontinue all depictions of the flag or remove the words "Springfield Township" from the name of the PBA. (Id. at 2.)

B. Resolution 1592

When the PBA refused to change its logo or its name, the Springfield Township Board of Commissioners drafted Resolution 1592:

[T]he Board of Commissioners of Springfield Township does, as a matter of respect and sensitivity to all the citizens of the Township, hereby prohibit the publicly visible display or use of any image which depicts the Thin Blue Line American Flag symbol by any Township employee, agent, or consultant and in an effort to be clear and as reasonably limited as possible, specifically prohibits the following:

1) The publicly visible depiction of the symbol on the clothing or skin of any Township employee, agent or consultant while on duty, during the workday of the individual or while representing the Township in any way (specifically including the off duty time of any such individual if still wearing the Township uniform).

2) The publicly visible depiction of the Thin Blue Line American [F]lag symbol on any personal property of a [T]ownship employee, agent, or consultant, which is brought into the [T]ownship building (except prior to or subsequent to reporting for duty or any official assignment for the Township), and which, in the reasonable opinion of the Township Manager, is placed in a location likely to be seen by a member of the public while visiting the [T]ownship building.

3) The display, by installation or affixation of a publicly visible depiction of the symbol, on [T]ownship owned property (including [T]ownship vehicles), by any person.

(Doc. No. 1-5 at 1-2.)

In addition, the Resolution includes six "whereas" clauses that outline the Board's justification for passing the Resolution. (See Doc. No. 1-5 at 1.) These clauses briefly describe the history of the "Thin Blue Line" flag, which began as a "black field with a single, narrow blue line" and developed into the Thin Blue Line American Flag. (Id.) Although the Thin Blue Line American Flag was "created as a sign of support for law enforcement officers, . . . over time, and partially in negative response to the 'Black Lives Matter' flag, the Thin Blue Line American Flag has also come to represent opposition to racial justice movements . . . and in some instances has become a symbol of white supremacy." (Id.) Given this history, and following "public comment from many Springfield Township . . . residents" who stated that continued use of the flag "appears to express support for the systemic oppression of certain members of the Township community," the Board concluded that the "publicly visible display of the Thin Blue Line American Flag symbol . . . is contrary to the core values of the Township, and impedes efforts to build trust among all citizens in the policing services provided by the Township through its well-respected Police Department." (Id.)

The Resolution was placed on the agenda of the December 14, 2022 meeting of the Board of Commissioners, and ultimately adopted on January 11, 2023. (Doc. Nos. 1-4, 1-5; see also https://www.springfieldmontco.org/government/board-of-commissioners/commissioner-agendas-minutes/ ("Video of Jan. 11 Bd. Meeting").) During the meeting on January 11, the Board discussed the history of the Township's discussions about the flag and opened the floor to public comment about the Resolution. (Video of Jan. 11 Bd. Meeting at 00:02.48-3:57.26.) Five days later, Mr. Taylor circulated a Memorandum to all Township employees about Resolution 1592, emphasizing that the Resolution was "effective immediately." (Doc. No. 1-6.)

C. Procedural History

On January 27, 2023, a little over two weeks after the Board adopted Resolution 1592, Plaintiffs filed this action pursuant to 42 U.S.C. § 1983, alleging that the Resolution violates the First and Fourteenth Amendments on its face because it is unconstitutional viewpoint discrimination, overbroad, and vague. (See Doc. No. 1 at ¶¶ 70, 76, 81.) Plaintiffs simultaneously moved for a temporary restraining order ("TRO") and preliminary injunction. (Doc. No. 2.) The Court held a telephone conference with counsel for Plaintiffs and Mr. Garrity to discuss the motion. (See Doc. No. 4.) During that conference, Mr. Garrity...