Philly cops fight back 2 years after Facebook posts got them fired

One of the fired officers was reinstated with full back pay, while the firing of another was upheld


By Chris Palmer, William Bender and Jeremy Roebuck
The Philadelphia Inquirer

PHILADELPHIA — It was the largest act of mass discipline in Philadelphia police history: 15 cops forced off the job, and dozens more suspended or reprimanded, for making racist, sexist or discriminatory Facebook posts — all cataloged by advocates in a public database.

But in the two years since that scandal hit the city’s Police Department, some of the cops have been fighting back, challenging their penalties through arbitration or filing lawsuits.

Philadelphia Police commissioner Richard Ross Jr. speaks to the media during a news conference at the Police Administration Building in Philadelphia on July 18, 2019.
Philadelphia Police commissioner Richard Ross Jr. speaks to the media during a news conference at the Police Administration Building in Philadelphia on July 18, 2019. (Anthony Pezzotti/The Philadelphia Inquirer/TNS)

In recent months, the saga has taken several new turns.

One of the officers who was fired, Christian Fenico, was reinstated with full back pay. An arbitrator ruled that his social media posts that had been flagged by the Plain View Project — which, among other things, called the mother of one person arrested a “scumbag” and said refugees should “starve to death” — did not prevent him from being a valuable officer.

The firing of another officer, Daniel Farrelly, meanwhile, was upheld when the same arbitrator ruled that his online activity was overwhelmingly “dehumanizing” and “demeaning.” Farrelly’s 17 posts or comments belittled immigrants, mocked protesters and used the word “animals” in reference to Black people.

The arbitration process is also underway for at least five other officers, including one who was suspended for 30 days and recently reached a preliminary settlement agreement with the city.

Separately, a federal judge in April dismissed a civil rights lawsuit brought by seven of the disciplined officers in which they accused the city of “reverse racism” and unfairly punishing them for holding right-wing views. A second federal suit from 11 others remains pending, with each of the plaintiffs seeking $2 million in damages.

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For reform advocates, the flurry of activity two years after the scandal first came to light, shows that true law enforcement accountability in Philadelphia remains a work in progress — even after George Floyd’s death sparked an intense national conversation about policing, justice, and racial equity.

“There’s a lot of work we have to do,” said Nicolas O’Rourke, organizing director for the Pennsylvania chapter of the progressive Working Families Party. “Movements generate the conversation; they also absolutely create change. If we do not stick to our goals in bringing about actual reforms addressing root causes ... then we’re not going to see change.”

The city, too, views the legal battles over the disciplined officers as crucial in its efforts to bolster trust in the Police Department. Citing the killing of Floyd, the protest movement it spawned, and calls to defund the police, the city has opposed all efforts by the fired officers to win back their jobs.

“The city and the (Philadelphia Police Department) face an existential challenge,” lawyers for the city wrote in response to one of the lawsuits. “Given this volatility and the national spotlight on police departments, the city — now more than ever — needs to be able to exercise its broad discretion as employers without fearing that every decision to cleanse its ranks will be necessarily followed by sprawling allegations of First Amendment violations.”

The police union, however, has long cast the battle over the punishment against officers called out by the the Plain View Project as one in which the city rushed to judgment, trampled over officers’ due process rights, and handed out disproportionate penalties simply to quell public outcry.

A spokesperson for the union declined to comment.

The Plain View Project scandal erupted in June 2019, when advocates studying police bias published a database flagging hundreds of Facebook posts by officers in Philadelphia and seven other jurisdictions that the advocates found racist, intolerant or offensive.

As the database made national headlines, then-Philadelphia Police Commissioner Richard Ross benched 72 officers and opened an investigation. Fifteen cops were ultimately suspended with intent to dismiss, though several chose to retire before their firing could take effect.

In all, 193 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.

But at least seven officers filed grievances contesting the penalties and as provided in their contract, the disputes went to binding arbitration.

Three have had their cases resolved: Farrelly and Fenico, who were suspended with intent to dismiss, and Brian Cain, who was suspended for 30 days. The mayor’s office said details about Cain’s case were unavailable because a settlement agreement had not been finalized.

In Farrelly’s case, arbitrator Timothy J. Brown in December upheld his August 2019 termination, finding that the city had met the burden of proof in demonstrating that his posts could widely be interpreted as racist, homophobic, anti-Muslim and promoting violence — making him guilty of conduct unbecoming and neglect of duty.

In a 2013 post, Farrelly, using the name “Daniel Mike,” referred to two Black women in a video as “her and her animal sister.” Three years later, he posted on Facebook: “Welcome to Philadelphia! Animals all over the place!”

At his arbitration hearing, Farrelly said that post “could have been about actual animals,” according to a summary of the case prepared by the arbitrator. Brown said he did not find that explanation plausible.

Brown said he also found that Farrelly’s online activity “degraded individuals and communities” by associating immigrants with terrorists, and that he had been “encouraging violence” and “encouraging suppression of the right to protest.”

Farrelly, for his part, had been under the impression that he had done nothing wrong. The 17-year veteran of the force testified that when he first learned of the Plain View Project, he went to the site to see what information the group had compiled on him and said he was relieved.

“To be absolutely honest with you, I looked through them, and, I mean, I shrugged my shoulders. I really didn’t think there was anything super — nothing bad at all to tell you the truth,” Farrelly said, according to Brown’s ruling, adding: “I posted thousands and thousands of posts through the years. And I never worried about one of them.”

When a superior later informed him that he was being taken off the street, Farrelly thought it was a joke.

John McGrody, vice president of the Philadelphia FOP, defended Farrelly in arbitration, accusing the city of engaging in “cancel culture” behavior, a rushed and incomplete investigation, and meting out punishment that violated officers’ due process rights.

In summarizing McGrody’s argument, Brown wrote: “McGrody testified that the job of a Philadelphia police officer is very stressful and cops talk and vent among themselves. Cops talk a lot. Venting sometimes comes in the form of ‘dark humor.’”

Brown had a different opinion of the social media activity of Fenico, a SWAT officer and 16-year veteran. In February, Brown reduced Fenico’s August 2019 termination to a 30-day suspension.

Fenico had been fired for Facebook posts and comments that the city described in legal filings as “a mix of racial bias, anti-Muslim sentiment and promotion of extrajudicial violence.”

When confronted with the posts, Fenico initially denied they were his, Brown wrote, but later acknowledged they were.

In December 2015, when Farrelly posted a Facebook video with a caption that referred to refugees rejecting food and said “STOP ISLAM,” Fenico, using the name “Chris Joseph,” responded: “Good, let them starve to death. I hate every last one of them.”

At his arbitration hearing, Fenico contended that he was referring only to terrorists Farrelly had mentioned in a subsequent comment, not Muslims or refugees in general. Brown seemed to accept that explanation, writing that Fenico might not have seen the words “STOP ISLAM,” so it was unclear what he meant when he wrote about people starving to death.

Still, Brown found that comment and others disturbing, including one that he said demonstrated “hatred,” but he ruled that the officer’s behavior did not warrant termination.

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“I am not persuaded by the city’s arguments that [Fenico] cannot correct his conduct and be a productive member of the department,” Brown wrote.

At least four other officers will have their cases heard by an arbitrator by the end of July. Three are challenging their 30-day suspensions, and one is contesting a suspension with intent to dismiss.

Meanwhile, although eight of the officers, including Farrelly, saw their federal civil rights suit dismissed for procedural defects, their lawyer is holding open the option of whether to refile. The second suit involving 11 more officers, with Fenico as its lead plaintiff, remains pending.

©2021 The Philadelphia Inquirer, LLC. Visit at inquirer.com. Distributed by Tribune Content Agency, LLC.

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