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

859 F.2d 276, 1988 WL 105467
CourtCourt of Appeals for the Third Circuit
DecidedOctober 13, 1988
DocketNo. 88-1073
StatusPublished
Cited by4 cases

This text of 859 F.2d 276 (Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia, 859 F.2d 276, 1988 WL 105467 (3d Cir. 1988).

Opinion

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

This appeal concerns a questionnaire sought to be instituted by the City of Philadelphia and its police department to assist that department in selecting applicants to its Special Investigations Unit (SIU). The district court permanently enjoined the City and its police officials from requiring SIU applicants to answer certain questions to which the Fraternal Order of Police, Lodge 5 (FOP), objects. The district court held that the proposed use of the questionnaire violates the applicants’ right to be free from compelled self-incrimination, guaranteed by the fifth amendment to the United States constitution. We do not agree that a fifth amendment violation exists, and will reverse.

I.

This is the third appeal by the City of Philadelphia in this case. We have previously described the purposes and inception of the SIU and the questionnaire, see Fraternal Order of Police, Lodge 5 v. City of Philadelphia, 812 F.2d 105, 107-108 (3d Cir.1987) (hereinafter “FOP 7”), and find it unnecessary to recount these facts in the same detail here. However, we cannot proceed without providing some duplicative background about the facts and history of this case.

The SIU is a relatively new unit of the Philadelphia Police Department, established on January 31, 1986 by the Police Commissioner in response to a recent history of corruption within the department. The SIU’s purpose is to centralize control over internal corruption investigations, internal disciplinary investigations and vice investigations. These responsibilities were formerly met by the Major Investigations Division (EAD), and the Internal Affairs Bureau (IAB). Because of the sensitivity of the work of the new unit and the need to " ‘bring integrity back to this City and this police department,’ ” FOP I, 812 F.2d at 108, the Commissioner developed a stringent screening process for selecting officers to serve in the SIU, announcing at the outset that applicants would be required to submit to a polygraph examination and personal interview before acceptance. Shortly after the Commissioner’s initial announcement, the Police Department issued a document, referred to as the Fact Sheet, that set forth in detail the procedures to be used in the SIU application process. In FOP I, we described that Fact Sheet as follows:

The Fact Sheet states that SIU applicants must complete and certify a questionnaire, attached thereto, and must undergo an initial personal interview, a background investigation, a polygraph examination, and a final personal interview. The questionnaire contains thirty-nine questions seeking personal information about the applicant and his or her family. The Fact Sheet states:
All answers to this Questionnaire are considered confidential and will not be disclosed to any agency or unauthorized person, nor will they be made part of any departmental record or used against you in any manner in your future career with the department.
App. at 536. In addition, the Fact Sheet informs applicants that they may withdraw from the application process at will with no effect on their ‘future career in the Department,’ and that upon withdrawal, their ‘questionnaire, and all other related paperwork will be destroyed.’ App. at 534.

FOP I, 812 F.2d at 108. The Fact Sheet further advises that current employees in the MID, the EAD, and the IAB must complete the questionnaire and submit to a polygraph examination. It states that some members of these units will be trans[278]*278ferred temporarily into the SIU, in order to enable them to complete assignments, without participating in the selection process. Eventually, however, any officer currently assigned to one of the SIU predecessor units, who chooses not to apply for the SIU, will be transferred out of the SIU: no one will be grandfathered into the new unit.

Twelve of the thirty-nine questions in the application questionnaire seek medical information, information concerning a police officer’s behavior, and financial information about the officer and his or her family.1 The Police Department states on the Fact Sheet that the polygraph examination will be used to verify the information supplied by the applicant in the questionnaire. The Fact Sheet notes, however, that:

[pjolygraph examinations will not be given until the adoption and passage of new Civil Service regulations and the completion of a pending labor grievance or court approval. If this occurs after you have been selected for assignment to the Special Investigations Bureau, you will be required to take the polygraph examination at the time as a deferred final step in the selection process ...
Because of the deferral of the polygraph examination at this time, it will be necessary to sign a certification stating that your answers in the questionnaire are true and correct.

Joint Appendix at 533(a) [hereinafter “Jt. App.”] (Fact Sheet). The certification states that the applicant certifies that his written answers to the questions are true and correct and that he understands that any false statements are punishable and are subject to the penalties prescribed in 18 Pa.C.S.A. § 4904 (1983)2, which prohibits [279]*279unsworn falsifications to authorities. See Jt.App. at 532a.

In response to the announcement of the application procedures for the SIU, the FOP filed a grievance claiming that the polygraph examination violated its labor agreement with the City of Philadelphia. The FOP also filed a complaint in the Court of Common Pleas of Philadelphia County against Philadelphia and the Police Commissioner, asking for an injunction of the polygraph examination requirement pending arbitration of the grievance. The FOP withdrew this request for a preliminary injunction after the Department agreed to refrain from implementing the polygraph requirement pending arbitration of the issue.

On February 26, 1986 the FOP filed a complaint in federal district court under 42 U.S.C. § 1983, challenging the Department’s use of the polygraph and twelve of the items on the questionnaire, on the grounds that they violated the police officers’ federal constitutional rights under the first, fourth, fifth and fourteenth amendments and their right to privacy under the Pennsylvania Constitution. The district court held a three-day evidentiary hearing, after which it issued an order permanently enjoining Philadelphia and the police department from requiring SIU applicants to answer all twelve of the challenged questions. The district court did not rule on the polygraph examination as a grievance was before an arbitrator for resolution.3

The City and Police Commissioner appealed. On appeal, this Court on February 17, 1987 largely reversed the district court’s order and remanded.

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Bluebook (online)
859 F.2d 276, 1988 WL 105467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fraternal-order-of-police-lodge-no-5-v-city-of-philadelphia-ca3-1988.