Melvin v. City of Philadlephia

Full title: MICHAEL MELVIN, DANIEL FARRELLY, BRION MILLIGAN, MARK PALMA, ROBERT…

Court: United States District Court, E.D. Pennsylvania

Date published: Jul 29, 2022

Civil Action 21-3209 (E.D. Pa. Jul. 29, 2022)

Opinion

Civil Action 21-3209

07-29-2022

MICHAEL MELVIN, DANIEL FARRELLY, BRION MILLIGAN, MARK PALMA, ROBERT BANNAN, JESUS CRUZ, STEVEN HARTZELL, JOSEPH FOX v. CITY OF PHILADELPHIA

KEARNEY, J.

ORDER

KEARNEY, J.

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

1. We deny Defendant's motion to dismiss the First Amendment claim today only to allow further analysis after our Court of Appeals' final Order in Fenico v. City of Philadelphia which both parties agree address the same factual issues and nothing in this Order should be construed as a finding Plaintiffs have stated a First Amendment claim until further analysis;

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

3. We grant Defendant's motion to dismiss Plaintiffs' Second Amendment claim as withdrawn;

4. We grant Defendant's motion to dismiss Plaintiffs' claims under the Pennsylvania Constitution without prejudice to specifically plead claims of declaratory relief consistent with Rule 11;

5. We grant Defendant's motion to dismiss Plaintiffs' Fourteenth Amendment vagueness challenge with prejudice for lack of standing;

6. We grant Defendant's motion to dismiss Plaintiffs' Fourteenth Amendment “as applied” challenge and equal protection claims without prejudice;

7. We grant Defendant's motion to dismiss Plaintiffs' due process claims without prejudice; and, 8. Plaintiffs are granted leave to file an amended Complaint no later than August 19, 2022 to plead claims not dismissed with prejudice.