Appellate court ruling on Philly cops’ social media posts sends a dangerous message | Michael Coard

We need far more than just mere reform to fix a broken binding arbitration system

June 20, 2023 6:30 am
Flashing lights on a police car

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On June 8, the Third Circuit U.S. Court of Appeals, which, as all federal circuit courts, is just one step below the U.S. Supreme Court, ruled that despite the “offensive, racist, and violent” Facebook posts by Philly cops up through 2016, they may nonetheless raise a First Amendment free speech claim that could legally allow them to be offensive, racist, and violent on social media.

An incredible 505 active duty and retired officers in 2019 were identified as having made such or similar posts. Of that number, 330 continued receiving their pay as if nothing had happened. Oh, by the way, those 330 were not all lower-level rookie beat cops. They also included 16 high-ranking officials, namely an inspector, six captains, and nine lieutenants.

Because the posts at issue were so outrageously offensive, about 200 police officers were eventually disciplined, including 15 who were fired or otherwise forced out.

Twelve of those 15 later filed a lawsuit, which a learned and highly respected Black federal District Court judge, namely the Hon. Petrese Tucker, justifiably threw out last year on the grounds that those posts were so hateful and vile that they undermined public confidence in those cops’ ability to treat all people equally under the law.

But the court of appeals recently reversed her decision, thereby allowing those officers the ability to return to court to argue that they should be allowed to return to the streets- again with a license to be racist and brutal as well as hateful and vile.     

Here are just 10 examples, compiled by the Plain View Project, of those racist, brutal, hateful, and vile posts:

  1. Apprehended suspects, most of whom are Black men, “should be dead.”
  2. The image of a bruised and bloodied Black man was used as a sadistic Facebook profile photo.
  3. Blacks shopping at Walmart are “creatures” at “the ghetto mart.”
  4. Islam, whose practitioners in Philadelphia are predominantly Black. is “a cult, not a religion.”
  5. “Death to Islam.”
  6. Certain delinquent juveniles, most of whom in Philadelphia are Black (and have been found guilty mostly by white judges after having been arrested mostly by white cops), should be “shot in the face.”
  7. Police “should have stuck a gun up … [a suspect’s] butt and pulled the trigger.”
  8. “It’s a good day for a chokehold.”
  9. Raping women is funny.
  10. Beating women is funny. 

The First Amendment reads in pertinent part, “[The government] shall make no law … abridging the freedom of speech ….”

But just as U.S. Supreme Court Justice Oliver Wendell Holmes sagely wrote in 1919, “[The First Amendment does] not protect a man in falsely shouting fire in a theatre and causing a panic.”

And 50 years later, the U.S. Supreme Court in the 1969 Brandenburg v. Ohio case recognized that, although laws against spoken and/or written expression should and must, in a general sense, be declared unconstitutional, there also should and must be certain limited restrictions under certain limited circumstances. 

And those certain limited restrictions under those certain limited circumstances should and must include cops, who- although sworn to uphold the law- speak and write about violating that very same law by advocating the use of racism, brutality, hate, and vileness.   

However, believe it or not, the First Amendment is not the real point here, at least not in Pennsylvania. The real point- correction, the real problem is Pennsylvania’s Act 111 of 1968.

That act concerns the Philadelphia police arbitration system. And it allows a civilian arbitrator from the American Arbitration Association to “ignore findings of fact” regarding brutality, corruption, and other misconduct deemed founded by the Internal Affairs Division (IAD) and the Police Board of Inquiry (PBI). 

The act also allows the arbitrator to “reject the punishment” assessed by IAD and PBI “even if the facts as charged have been proven.”

For more information about the brutality/corruption/misconduct-condoning arbitration system, read a powerful and thorough legal analysis by the Philadelphia Bar Association about the system’s inherent and intentional flaws. Although it was written in 2002, it is presciently timely in 2023. You can read it here

That act is not just the problem. It’s actually the cancer manifested in the symptoms of police brutality. And like all forms of cancer, it must be cut out — in this case, abolished.

That’s precisely why the proposal set forth by state Rep. Donna Bullock is a step in the right direction.

As explained in her Aug. 27, 2020 press release following the police murders of George Floyd, Breonna Taylor, and Jacob Blake.

“We must enact a statewide use-of-force policy and reform how arbitration works through Act 111. Law enforcement officials agree that Act 111 makes it too difficult to remove officers who dishonor the badge and the communities they’re supposed to protect through acts of misconduct.”

For me, complete abolition is required. But I’ll grudgingly accept partial reform, at least as a first step toward a complete end to police racism, police brutality, police hate, and police vileness.   

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Michael Coard
Michael Coard

Opinion contributor Michael Coard, an attorney and radio host, is a columnist for the Philadelphia Tribune. His work appears biweekly on the Capital-Star’s Commentary Page. Readers may follow him on Twitter @michaelcoard.