By Chris Palmer and Jeremy Roebuck
The Philadelphia Inquirer
PHILADELPHIA — The Philadelphia Police Department’s 2019 move to fire 15 officers and discipline scores of others over Facebook posts that were deemed racist, discriminatory, or otherwise offensive was hailed at the time as unprecedented — a strikingly forceful step by an agency often criticized for lacking internal accountability.
But in the four years since, five of the officers who were forced off the job have had their firings reversed through arbitration. Only one firing has been upheld by an arbitrator hearing the case.
Six other appeals remain pending, while three of the officers’ claims were resolved through settlements with the city.
Of those who won their grievances, some chose to retire rather than go back to the force.
Meanwhile, some officers who were suspended have also seen their penalties downgraded, a decision that has allowed them to collect back pay for some of the time they were benched.
In addition, a group of some of those same officers is seeking an even bigger payout: court-awarded damages in a lawsuit they’ve filed, accusing the department of violating their First Amendment rights. A federal appeals court recently said the case could move forward, reversing a previous judge’s decision to toss it out.
These developments have unfolded over time and away from the spotlight — a contrast with the manner in which the scandal rocked the department when it first erupted, attracting unflattering national attention and sparking protests outside Police Headquarters.
And, perhaps unusually, the new chapters, which have generally benefited the officers, have occurred even as arbitrators and judges have sought to make clear that many of the posts that prompted the officers’ discipline were clearly discriminatory or objectionable — including by promoting violence, expressing anti-Muslim views, or making misogynistic or homophobic comments that some later said were jokes.
For instance, Thomas Young, who was suspended with intent to dismiss in July 2019, routinely commented on posts from conservative news sites and called for a ban on Islam in the United States in ways that department officials felt denigrated immigrants from the Middle East. “Why are we allowing these savages into America?” he wrote in one 2016 post. An arbitrator ruled last year that Young’s termination should be reduced to a 30-day suspension.
Other officers shared posts likening leftist protesters to speed bumps, referred to suspects as “nothing but savages [who] should be thrown in a wood chipper,” or used crude language to disparage people with people with different — typically liberal — political views.
But, as the federal appeals court noted earlier this month, even if the sentiments the officers expressed were distasteful, that, on its own, may not justify the department’s decision to strip them of their livelihood.
“The constitutional guarantee of free expression is a pillar of our democracy, and yet, it can be a bitter medicine,” the court wrote, “particularly when prescribed in defense of social media’s more antisocial viewpoints.”
A contentious scandal
The officers’ posts first came to light in June 2019 when a group of advocates studying biases in policing published a database they dubbed the Plain View Project. It flagged hundreds of posts purportedly made by officers in Philadelphia and seven other jurisdictions that the advocates described as racist, intolerant, or celebrating excessive force used by police.
As the database made national headlines, then-Police Commissioner Richard Ross benched 72 officers and opened an Internal Affairs investigation. Fifteen cops were ultimately suspended with intent to dismiss, though several — including Young — chose to retire before their firing could take effect.
In all, nearly 200 officers were found to have violated department policy, officials said, and the vast majority received “command level discipline,” in which the most serious penalty was a five-day suspension.
The department generally said the officers had violated its directive on social media use, which instructs officers that their posts and online activity — even on personal accounts — “shall reflect [the] professional expectations and standards” they are asked to embody on the job.
But the police union was critical from the beginning, saying the city, in an attempt to address a roiling public relations crisis, abused that policy to violate officers’ due process rights and hand out inappropriate and inconsistent penalties.
John McGrody, vice president of Fraternal Order of Police Lodge 5, said in an interview last week that he believed the Police Department’s investigation into the episode was done “improperly” and that he believed the city had “just accept[ed] the word of” the Plain View Project, which he said “has an anti-police bias.”
The union filed grievances challenging all 15 firings.
Discipline overturned
Nine cases have since been decided, and firings were overturned in at least five of them, according to an Inquirer review of the arbitration opinions posted on the city’s website: Young, Brion Milligan, Edward McCammitt, Mark Palma, and Christian Fenico.
The city said it also agreed to settle three cases, though it declined to provide details about the terms of those agreements.
The one firing that was upheld was Daniel Farrelly’s. An arbitrator said Farrelly’s posts were overwhelmingly “dehumanizing,” frequently associating immigrants with terrorists, encouraging violence, and, in one instance, referring to two Black women as “her and her animal sister.”
In cases that were reversed, arbitrators generally found that the penalties imposed on officers were too harsh, inconsistent with other disciplinary decisions, or didn’t account for an officer’s full history on the force.
Milligan, for example, had his firing reduced to a 30-day suspension in a case that was decided earlier this spring. The city argued that 12 of his posts were detrimental to the department’s attempts to build public trust. In one of them, from 2016, Milligan compared the federal government under then-President Barack Obama to the Nazi regime, adding: “If you voted for this tyrannical, incompetent, American hating baskin robbins floor licker … Kill yourself.”
But the arbitrator in his case, Thomas P. Leonard, said Milligan, a 23-year veteran, had never been disciplined before, and had never behaved in a way that reflected any of the biases the city said he displayed in his posts. Leonard also said other officers flagged by the Plain View Project received more lenient punishments than Milligan even though they posted similar sentiments online.
“The Department fell short in proving why [Milligan’s] 12 posts were so egregious that he had to be discharged,” Leonard wrote.
It’s not clear how many of the officers who won their grievances are actually back to work, as some chose to retire in the wake of the scandal or after their grievances were decided. The city declined to identify the 15 officers who were fired, citing privacy concerns, and the Police Department, when asked about the employment status of 10 people who sued over their terminations, said only one of them — Fenico — was back on the job as of this spring.
Still, winning the arbitration battle has significant financial benefits, even if officers decide not to don the uniform again: It allows them to collect back-pay for the years they were sidelined and also add to their pensions as if they’d been working that whole time.
“It’s as if you’d never been terminated,” McGrody said.
McCammitt, a three-decade veteran, is one example. He was fired for making 10 posts that Internal Affairs said had violated the Police Department’s social media policy, including by sharing a meme comparing protesters to speed bumps, and posting another that showed a demonstrator screaming in pain with the caption: “When you get shot in the groin by a rubber bullet and your made-up gender doesn’t protect your” genitalia.
McCammit told the arbitrator he didn’t view the first meme as suggesting protesters should be run over, but as a comment on how mass demonstrations — like speed bumps — delay traffic. As for the second, he said he shared it because it reminded him of the TV show America’s Funniest Home Videos.
More broadly, McCammit said he thought department policy allowed him to post whatever he wanted as long as he wasn’t revealing crime scene photos or police tactics, according to the arbitration opinion. And he said he stopped posting similar memes after receiving departmental social media training in 2019.
The arbitrator in his case, Timothy J. Brown, said that change of course showed McCammit was capable of correcting his conduct, adding that McCammitt’s “posts on their face were not so numerous, offensive, broadly encompassing, widely disseminated and longstanding as to warrant such an egregious violation finding.”
McCammitt’s firing was reduced to a 30-day suspension in February of last year. The Police Department said he officially retired last November.
Additional legal fights
There still could be more money coming his way. McCammitt is among 12 of the officers who filed a federal civil rights lawsuit against the city in 2020 over the discipline they received for their Facebook posts.
They’ve argued the posts for which they were reprimanded were made on personal accounts and did not reflect their work on the force. Their terminations and suspensions, they say, violated their First Amendment rights to free speech.
Last year, a federal judge ruled against them, dismissing their suit and siding with the Police Department. The judge described the officers as having “played racist bingo mocking as many ethnic or religious groups as possible in their posts” and noting such offensive sentiments eroded public trust in law enforcement.
But that decision was overturned earlier this month by a three-judge panel for the U.S. Court of Appeals for the Third Circuit. It ruled that while many of the posts were offensive, the decision to toss the officers’ case had been made prematurely, before determining what actual affect their social media musings had had on the department or its relationship to the community.
The case will now head back to a lower court, where the officers are seeking a judgment declaring that the department violated their constitutional rights, as well as damages in excess of $2 million each.
“While the officers undoubtedly face a steep uphill battle in ultimately proving their case,” the Third Circuit panel wrote, “the allegations in their … complaint entitle them to develop it.”
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