Fraternal Order of Police Lodge No. 5 v. City of Philadelphia

The Philadelphia District Attorney’s Office has maintained a Do Not Call List of police officers who the Office will not call as witnesses because they have prior allegations of misconduct. That list was made public. The FOP and several officers filed a complaint seeking injunctive and declaratory relief, alleging that the Office did not notify them of its internal investigation. And the officers suffered career as well as reputational harm since being included on the list. The Court of Common Pleas dismissed the complaint after preliminary objections. An en banc panel of the Pennsylvania Commonwealth Court reversed and remanded. Though the Court agreed with the lower court that the DA’s Office had to turn over impeachment evidence to defense attorneys under Brady and Giglio, the Court ruled that the process of compiling a Do Not Call List might violate the officers’ procedural due process rights. Also, the potential damages were not speculative. Further, since the officers sought equitable relief and not monetary damages, the trial court incorrectly concluded that the DA Office’s absolute immunity barred Counts I and II.

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