ONE THREE FIVE, INC. t/d/b/a Blush, Plaintiff, v. CITY OF PITTSBURGH, Acting Chief of Police Regina McDonald, Defendants, 951 F. Supp. 2d 788

MEMORANDUM OPINION NORA BARRY FISCHER, District Judge. I.

INTRODUCTION In this case, Plaintiff One Three Five, Inc. t/d/b/a Blush (“Plaintiff’), an adult entertainment establishment in downtown Pittsburgh featuring nude, erotic dancing, alleges that its federal constitutional rights to freedom of speech, procedural due process and equal protection of the laws and its Pennsylvania constitutional right to freedom of speech have been violated by the recent decision by Defendant Acting Chief of Police Regina McDonald (“Acting Chief McDonald”) revoking Blush’s status as an approved secondary employer under the Bureau of Police’s Secondary Employment Program and preventing City of Pittsburgh Bureau of Police officers from working off-duty secondary employment details at adult establishments. (Docket No. 1-1).

Plaintiff has moved for a temporary restraining order or, alternatively, a preliminary injunction to enjoin Defendants, the City of Pittsburgh (“the City”) and Acting Chief McDonald from enforcing- this directive. (Docket Nos. 3, 4, 5, 25-26). Defendants oppose both motions and contend that Acting Chief McDonald’s directive was made to enforce an alleged long-standing restriction on the ability of City police officers to engage in secondary employment at locations that may tend to bring the Bureau into disrepute. (Docket No. 8, 9, 23-24).

However, Defendants admit that the policy has never been enforced in the manner that was taken by Acting Chief McDonald. (Id.). The Court held a motion hearing on April 25, 2013 during which the parties presented witness testimony and documentary evidence for the Court’s consideration and the evidentiary record has now closed. (See Docket No. 22; Pl. Ex. 1-3; Def. Ex. B-D). The parties have since filed proposed findings of fact and conclusions of law with respect to the requested temporary restraining order and/or preliminary injunction. (See Docket Nos. 23-27).

Upon consideration of the present evidentiary record and all of the parties’ arguments, the Court finds that Plaintiff has met its burden to establish that the issuance of preliminary injunctive relief is appropriate in this case and Plaintiffs Motion [3] will be granted. The Court now turns to its explanation of this decision. II.

FINDINGS OF FACT At the .April 25, 2013 hearing, the Court accepted testimony from: Albert Bortz, proprietor of Blush; Anna West, head bartender at Blush; Officer Bernard Joseph McMullan of the City of Pittsburgh Bureau of Police, who also worked secondary employment details at Blush; Sabrina Bortz, payroll manager at Blush; Lieutenant Jennifer Ford of the City of Pittsburgh Bureau of Police; Acting Chief McDonald; and Sergeant Michael LaPorte -of the City of Pittsburgh Bureau of Police and President of the Fraternal Order of Police Fort Pitt Lodge No. 1 (“FOP”). (Docket No. 22). -The Court found all of the witnesses to be generally credible and truthful throughout their respective testimonies.

The parties also submitted all of the following documents into evidence: Order 29-1 (Pl. Ex. 1); Arbitration Award (Pl. Ex. 2); Deposition of Regina McDonald (Pl. Ex. 3); IACP Model Policy on Secondary Employment (Def. Ex. B); Pittsburgh Post-Gazette

article “Special events office channels millions in off-duty Pittsburgh Police .pay” dated 2/26/13 (Def. Ex. C); and a Triblive

article “Pittsburgh policies for off-duty police officers’ gigs lax” dated March 11, 2013 (Def. Ex. D). The Court holds that the credible evidence presented during the hearing established the following facts by a preponderance of the evidence. A Historical Background of Bureau’s Governance of Off-Duty Conduct of Officers The parties agree that the City of Pittsburgh Bureau of Police and the Acting Chief of Police have the authority to create and enforce policies governing the off-duty conduct of City of Pittsburgh police officers. (Docket No. 22 at 203-04).

Indeed, they have stipulated that police departments have the authority to discipline officers for off-duty conduct, including for engaging in conduct unbecoming an officer and that there are policies, procedures and guidelines that are adopted by any police department that provide for discipline of an officer based on his or her engaging in certain improprieties while off-duty. (Id.). However, the regulation of officers’ off-duty conduct by the Bureau and Chief are issues that have been subject to collective bargaining and arbitration between the Bureau and the FOP. (See Pl. Ex. 2; Docket No. 10-1).

Acting Chief McDonald testified that the Bureau has historically permitted its officers to engage in off-duty secondary employment “details” within the City limits wherein officers essentially provide security services to private businesses while wearing their full police uniform and carrying their Bureau-issued weapons in exchange for a fee paid by the private business to the City and for wages paid by the private business to the individual officer working in this capacity. (Docket No. 22 at 151). In these roles, officers are authorized to enforce City ordinances and laws, as if they were on-duty. (Id.).

Due to jurisdictional limitations on the scope of the arrest powers afforded to law enforcement officers in other municipalities and other conflicts which are not directly relevant here, it is undisputed that City of Pittsburgh police officers are the only law enforcement officers who could provide the same type of service to a business located within the City limits. (Id. at 181, 185). B. Bureau’s Policy-Making Practices and Procedures The record evidence before the Court demonstrates that such off-duty details by police officers have been permitted by the Bureau since at least 1966. (Id. at 17, 151).

For many years the practice was permitted by the Bureau without a written policy governing same. (Id. at 151). As is discussed in further detail below, over time, the Bureau developed a policy governing the off-duty employment of its officers. Lieutenant Ford, Acting Chief McDonald and Sergeant LaPorte testified consistently concerning the procedures employed by the Bureau to establish a new policy or revise a current policy. (Docket No. 22 at 99, 123, 175, 193-95).

Lieutenant Ford was familiar with these procedures as she has held a position overseeing policy writing within the Bureau since 2004. (Id. at 99, 123). Acting Chief McDonald likewise testified that she was familiar with the procedures for policy writing given her prior roles on a labor-management committee and as Assistant Chief for Administration for which her duties included oversight of the Special Events Office. (Id. at 175). Sergeant LaPorte also had some involvement with the review of Bureau policies given his role as President of the FOP. (Id. at 193-95).

The Bureau uses its internal staff to draft new policies and revise its current policies. (Id. at 99). The initial request to draft or revise a policy is usually made by the Chief of Police or one of the higher Commanders in the Bureau to Lieutenant Ford and/or an officer who assists her in drafting the policies. (Id.). The Bureau maintains a “bank” of model policies which are referenced for guidance and used as a base to develop the new or revised policy. (Id.).

The primary set of model policies that is maintained by the Bureau is produced by the International Association of Chiefs of Police (“IACP”) National Law Enforcement Policy Center. (Id.; Def. Ex. B). Lieutenant Ford testified that this organization has a model policy writing center and that the model policies it produces may be used by any police department in drafting policies. (Id. at 101). She explained that the IACP model policies are often accompanied by white papers or research detailing the reasons for the language incorporated into the suggested model policy. (Id. at 101-02).

She also understands that the IACP model policies are considered best practices for law enforcement agencies and are widely used by other police departments in developing policies. (Id. at 102). In addition to using the model policies, the officers tasked with drafting the policy will often meet with the higher level officers who requested the new policy or revision and/or with any officers who are considered experts on the subject matter of the policy and will incorporate their suggestions into the policy. (Id. at 100).

On occasion, the officers may secure a legal opinion concerning a policy from the City’s Legal Department. (Id. at 123). The first draft of a policy is prepared by Lieutenant Ford or another officer working with her. (Id. at 100). It is then sent for an initial level of review to the command staff, which consists of the Chiefs and Commanders of the Bureau, and to a set of police supervisors who have been asked to review policies. (Id. at 100). This initial review period typically lasts about a week. (Id. at 101).

Lieutenant Ford testified that any comments, suggestions or concerns regarding the policy which are made during this level of review are typically incorporated into the policy. (Id.). After any necessary revisions are made, the policy is then sent to the FOP for its review. (Id.). Under the collective bargaining agreement (“CBA”) between the City and the FOP, the FOP is granted fifteen (15) days to consider the proposed policy and to respond with comments, suggestions or concerns as to same. (Id.). The officers will consider any response from the FOP and incorporate any necessary revisions into the policy. (Id.).

After all changes are made, the final version of the proposed policy is sent to the Chief of Police for approval. (Id.). Once it is signed by the Chief, it becomes the policy of the Bureau. However, upon approval by the Chief, the policy is generally not released to the public. (Docket No. 22 at 122, 129-30). Lieutenant Ford and Acting Chief McDonald offered some general testimony concerning the Bureau’s early development of a formal, written policy governing secondary employment of City police officers. (Id. at 103-04, 151-52).

They recalled that the first version of the policy was developed during the tenure of former Chief of Police Robert McNeilly and may have been implemented in the early 2000s. (Id.). Neither remembered being personally involved in the drafting of the initial policy at that time and the prior version of the policy was not presented to the Court during the proceedings. (Id. at 103). C.

IACP Model Policy on Secondary Employment Defendants offered IACP Model Policy on Secondary Employment dated October 1996 and said model policy was admitted into evidence, with the Court reserving its ruling on the weight, if any, to be given to same. Def. Ex. B. Defendants did not present any evidence which confirmed that the IACP Model Policy was used by the Bureau to develop its own secondary employment policy and their witnesses were unaware if the IACP Model Policy was even referenced during that process.

The IACP Model Policy is not identical to the Bureau’s Order 29-1, which is at issue in this case, but is similar in some respects. Def. Ex. B.

From the Court’s view, the major difference between the IACP Model Policy and Order 29-1 is that the IACP Model Policy regulates only the conduct of the police officers and thereby contains no provisions which define a secondary employer, describe the process for a secondary employer to participate in the program, grant the authority to approve or disapprove of such an application to the chief of police or some other regulatory body, or set forth any guidelines for the revocation of secondary employer status. Compare Def. Ex. B; Pl. Ex. 1. The nomenclature used by the IACP Model Policy is also different.

To this end, the IACP Model Policy distinguishes between “extra-duty employment” and “regular off-duty employment” and provides guidelines for law enforcement personnel engaged in these types of secondary employment. Def. Ex. B. at § III. “Extra-duty employment” is defined as “employment that is conditioned on the actual or potential use of law enforcement powers by the police officer employee.” Id.

The policy further states that police officers may 'engage in “extra-duty employment” in a number of situations including “security and protection of life and property.” Id. at § IV.B.2.C. “Regular off-duty employment” is defined as “employment that will not require the use or potential use of law enforcement powers by the off-duty employee.” Id. at § III. This type of employment is permissible if it does not present a conflict of interest between the duties of the law enforcement officer and the secondary employer and the Model Policy provides examples of potential conflicts. Id. at § IV.A.2.

It also states the following with respect to “regular off-duty employment”: 3. Employment that does not constitute a threat to the status or dignity of law enforcement as a professional occupation. Examples of employment that constitute such a threat and should be denied include, but are not limited to: a. Establishments that sell pornographic books or magazines, sexual devices or videos, or that otherwise provide entertainment or services of a sexual nature. b. Any employment involving the sale, manufacture, or transport of alcoholic beverages as the principal business. c. Any gambling establishment.

Id. at § IV.A.3. The IACP Model Policy suggests that law enforcement agencies place some limitations on regular off-duty employment and extra-duty employment which focus on the eligibility of the officer, the number of hours that may be worked, scheduling concerns and prioritizes such outside work below regular police duties of the officers. Id. at § IV.C.

The IACP Model Policy concludes that “[p]ermission for a police employee to engage in outside employment may be revoked where it is determined pursuant to agency procedure that such outside employment is not in the best interests of the agency.” Id. at § IV.C.7. D. Arbitration Award and CBA The earliest evidence of the Bureau’s formal policy governing secondary employment of its officers in the present record is an Arbitration Award in Case No. 55 360 L 00341 04 between the City and FOP from a hearing dated June 9, 2006. Pl. Ex. 2.

The Arbitration Award details certain terms and conditions of the secondary employment program vis-a-vis the Bureau and City police officers which would govern the parties’ relationship going forward. Id. Sergeant LaPorte testified that the terms and conditions of

Section A, paragraphs 1-14, of the Arbitration Award were directly copied by the City’s lawyers into the CBA between the City of Pittsburgh and the FOP. (Docket No. 22 at 201). Indeed, the Court agrees that several of the paragraphs in the Arbitration Award are identical to the portion of § 24 of the CBA which was also presented by Defendants for the Court’s consideration. (See Docket No. 10-1).

The Arbitration Award and CBA contain a similar provision which is relevant to this case, and provides that “[t]he City may enact reasonable rules and regulations to govern the secondary employment of police personnel, including but not limited to ... limitations on who may be an approved Secondary Employer.” (Docket No. 10-1 at ¶ 4; Pl. Ex. 2 at § A.4 (emphasis added)). Thus, pursuant to this language, the City is granted the discretion to set limitations on entities that may be approved as secondary employers under the program and apparently may do so without seeking the input of the FOP. Id.

The remainder of the provisions of the Arbitration Award and CBA set forth the parameters of the secondary employer program as it relates to the duties and responsibilities of the City and its police force. To this end, both the Arbitration Award and CBA emphasize that police officers are “first and foremost police officers or police supervisors of the City,” that officers must avoid conflicts between their regular duties and secondary employment, and that officers are voluntary participants in all secondary employment work. (Id. at ¶¶ 1, 2).

The documents also explain, among other things, that the hours worked by City police officers in secondary employment positions do not constitute overtime hours as city employees and that officers are paid rates for off-duty jobs pursuant to any agreements between the City and the Secondary Employer. (Id. at ¶ 3). E. Order 29-1 The Pittsburgh Bureau of Police has enacted Order 29-1, an internal, non-public, Bureau policy the purpose of which “is to set forth guidelines to govern the secondary employment by members of the Pittsburgh Bureau of Police.” (Pl. Ex. 1).

Former Chief of Police Nate Harper signed the current version of Order 29-1, which has an effective date of April 16, 2007. (Id.).

Order 29-1 stresses that City police officers “must recognize that their primary duty, obligation and responsibilities are to the Pittsburgh Bureau of Police,” that police work takes precedence over secondary and outside employment, including emergency situations, special assignments or extra duty, that conflicts of interest must be avoided and that while secondary employment is permissible, it is subject to the terms and conditions of Order 29-1 and any such off-duty work by the officers must be approved by the Bureau. (Id. at §§ 1.2, 3.0, 4.1, 6.0).

In addition, the policy states that officers “will conduct themselves as though they were on-duty, and will be subject to all departmental rules, regulations, policies and procedures set forth by the Pittsburgh Bureau of Police while engaged in a secondary employment capacity.” (Id. at § 4.1).

Section 2.0 defines a number of terms of the policy, including: 2.1 Secondary Employment — Any employment of a member by a private entity that is conditioned on the actual or potential use of law enforcement powers by the police officer employee. 2.2 Outside Employment — Any employment of a member by a private entity that will not require the use or potential use of law enforcement powers by the off-duty employee. 2.3 Secondary Employer — A private entity that employs a member conditioned on the actual or potential use of law enforcement powers by the police officer employee. 2.9.

Detail — The secondary employment opportunity. The word “detail” is interchangeable with the phrase “secondary employment opportunity.” (Id. at §§ 2.1, 2.2, 2.3, 2.9).

Order 29-1 grants considerable authority to the Chief of Police to: determine the eligibility of all city police officers for secondary employment details, (Id. at § 5.0); approve or disapprove of the type of secondary employment for which any officer engages, (Id. at § 3.1); regulate the number of hours any officer may work in these off-duty positions, (Id. at §§ 3.1, 13.0, 14.0); and approve or disapprove of any application by a potential secondary employer to participate in the hiring of city police officers for off-duty details, (Id. at § 7.2).

The relevant provisions appear in the policy, as follows: 3.0 Authority 3.1 The Chief of Police or his/her designee shall have the authority to approve or disapprove the secondary employment of any member of the Bureau of Police. 3.3 The Chief of Police or his/her designee may regulate the type of employment and the hours a member may work. 4.0 Accountability 4.1 Members will conduct themselves as though they were on-duty, and will be subject to all departmental rules, regulations, policies and procedures set forth by the Pittsburgh Bureau of Police while engaged in a secondary employment capacity. 7.0 Secondary Employer Obliyations and Options 7.1 The Secondary Employer must complete and submit a PBP Form # 21.9.10, “Secondary Employment Agreement.” 7.2 The “Secondary Employment Application Agreement” is reviewed, approved or disapproved by the Chief of Police or his/her designee. 7.3 Approved applicants are notified in writing of the approval of the “Secondary Employment Application Agreement.” Obligations and options are presented. 7.4 Secondary Employers have three options when scheduling officers for a detail. 7.4.1.

Option 1 — The secondary employer can

schedule officers by utilizing the services of the Pittsburgh Bureau of Police, Office of Special Events and Cost Recovery (SECR). 7.4.1.2, The secondary employer will be billed for the officer(

s) hourly rate and cost recovery at the end of each month. The Cost Recovery Fee (“CRF”) is $3.85 per hour/per officer. Failure to pay this bill within thirty (30) days of receipt may result in the revocation of the secondary employer’s approved status. 7.4.2. Option 2 — The secondary employer can

schedule officers by utilizing the services of the Pittsburgh Bureau of Police, Officer of Special Events and Cost Recovery using a preference list. 7.4.2.4. The secondary employer will be billed for the officer(

s) hourly rate and cost recovery at the end of each month. The Cost Recovery Fee (“CRF”) for employers submitting a preference list is $3.85 per hour/per officer. Failure to pay this bill within thirty (30) days of receipt may result in the revocation of the secondary employer’s approved status. 7.4.3. Option 3 — An approved secondary employer that is not subject to special events or traffic obstruction permits may request to designate an active Pittsburgh Police officer to coordinate and

schedule details. 7.4.3.4. The secondary employer has the option of having the detail officers paid through the Police Bureau’s payroll system or electing to issue checks individually to the detail officers. (Note: the secondary employer must issue cash or checks directly to the detail officers or make payment throuyh the Bureau's payroll system. It is prohibited to make payment throuyh the scheduler or any other third party.) 7.4.3.5. The secondary employer will be billed for cost recovery at the end of each month.

The Cost Recovery Fee (“CRF”) for secondary employers utilizing a scheduler is $3.85 per hour/ per officer. Failure to pay the Cost Recovery Fee within thirty (30) days of receipt may result in the revocation of the secondary employer’s approved status. 13.0 Secondary Employment Limitations 13.5 With approval, an officer may engage in secondary employment opportunities at establishments whose primary purpose is the selling and dispensing of alcoholic beverages under the following provisions: 13.5.1. Officers shall be in full uniform 13.5.2.

Officers are not permitted to work inside the establishment, but may respond inside to handle any disturbances, crimes, etc., occurring in the establishment. 13.5.3 Officers are not permitted to “card” patrons 13.5.4.

Officers may not search patrons prior to entry into the establishment. (This provision also prohibits the use of hand-held metal detectors for the purpose of scanning or searching customers for weapons.). 13.6 Officers may not work secondary employment at any location that may tend to bring the Bureau of Police into disrepute or that may reduce the efficiency or usefulness of the officer as a member of the Bureau of Police. 14.0 Outside Employment 14.1 Employees may engage in off-duty outside employment that will not require the use or potential use of law enforcement powers by the off-duty employee as long as the following requirements are met: 14.1.4 The employment does not constitute a threat to the status or dignity of the police as a professional occupation.

Some examples of employment that present a threat to the status or dignity of the police profession include, but are not limited to: 14.1.4.1 Establishments that sell pornographic books, magazines, sexual devices or videos or that otherwise provide entertainment or services of a sexual nature. 14.1.4.2. Any gaming establishment not exempted by law. 15.0 General Rules, Reyulations & Guidelines 15.5 Officers working secondary employment details will not enforce business rules or directions of the Secondary Employer. 15.13 All members who wish to work or

schedule secondary employment opportunities shall adhere to the Bureau of Police Manual of Procedural Orders at all times while working secondary employment opportunities. (Pl. Ex. 1 (emphases in original)). All of the law enforcement witnesses who testified at the hearing confirmed that Order 29-1 distinguishes between “outside employment” and “secondary employment.” (Docket No. 22 at 119 (Ford); 149, 155-56 (McDonald); 194 (LaPorte)).

Sergeant LaPorte succinctly explained that an officer engaged in “outside employment” is working in a position which does not include the potential use of law enforcement powers by the officer, such as employment at Home Depot or Giant Eagle. (Docket No. 22 at 194). In contrast, officers working in a “secondary employment” capacity are dressed in their full City of Pittsburgh Bureau of Police uniform, possess their Bureau-issued weapons and are' expected to make full use of their arrest powers, as necessary. Pl. Ex. 1 at § 2.1. The City’s witnesses, Acting Chief McDonald and Lieutenant Ford, conceded that

Section 14.0 of Order 29-1 only applied directly to “outside employment” although, as is discussed in more detail below, they opined that the language of

Section 14.1.4 was relevant to their

interpretation of the provisions governing “secondary employment” under Order 29-1. (Docket No. 22 at 155-56). The testimony at the hearing established that, consistent with Order 29-1, entities seeking to become approved secondary employers are required to fill out an application and submit it to the Bureau. (Docket No. 22 at 122, 176). Acting Chief McDonald explained that the application constitutes an agreement between the Bureau and the secondary employer. (Id. at 176).

Upon receipt, the entity’s application is forwarded to the Chief of Police or his/her designee for a decision of whether to approve or disapprove of the application. (Id.). If the application is approved, the Bureau sends out a packet of information to the entity. (Id. at 123, 176). Although an information packet was not admitted into evidence, Acting Chief McDonald testified that it would include only a

summary of the policies and procedures under Order 29-1 because the policy itself is not generally made available to the public or the secondary employers, even upon request. (Id. at 122, 176). She provided little detail about the information provided about the policy to the secondary employer but confirmed that the packet would at least include details concerning: the $3.85 per hour cost recovery fee due to the City; the amount of wages due to the officers working the details; and, the potential methods available to pay the officers working details. (Id. at 176).

Acting Chief McDonald testified that an application may be denied if the business of the entity seeking services constituted a conflict of interest with the Bureau or if accepting the business as a secondary employer would otherwise violate Order 29-1. (Id. at 162-63). As an example, she explained that she had recently denied an application for a security company that wished to hire officers in a secondary employment capacity. (Id.). She also testified that an entity’s secondary employer status may be terminated if the entity failed to pay the necessary cost recovery fee. (Id.). F.

Plaintiffs Establishment — Blush Plaintiff One Three Five, Inc. is owned by Albert Bortz and operates the Edison Hotel and Blush in a commercial building located on 9th Street in the Cultural District of downtown Pittsburgh. (Docket No. 22 at 17-18, 37, 62). Plaintiffs operation of the Edison Hotel is not at issue in this litigation. With respect to Blush, the parties agree that Blush features adult entertainment consisting of nude, erotic dancing by its dancers and national acts.

Aside from the nude dancing, the atmosphere at Blush is akin to' a typical sports bar environment with numerous televisions, a disc jockey playing music and a cash bar. (Id. at 20, 49-50, 158). Bortz testified that he represents the third generation of his family to operate these types of businesses at that location and that his family has done so for approximately eighty (80) years. (Id. at 17). He further explained that he has personally worked at the businesses (and their predecessors) for almost forty-three (43) years. (Id.).

The main entry doors to Plaintiffs businesses are located on 9th Street. (Id. at 34, 55). These entry doors open into a lobby area which was recently renovated and consists of restrooms and two sets of internal doors that are used to access the different businesses, i.e., Blush and the Edison Hotel. (Id. at 34, 55, 60, 74). Acting Chief McDonald testified that the outdoor signage of the building is unremarkable and admitted that there are no bold signs on the building directly advertising Blush as a strip club or an adult business. (Id. at 161).

Bortz offered unrebutted testimony that Blush is an award-winning business, ranked as one of the top 100 adult-entertainment clubs in the country. (Id. at 25). Plaintiffs witnesses explained that Blush attracts steady business during the week but draws larger crowds when national acts perform on weekends- and at times when large events are going on in the City. (Id. at 22-3, 25-6, 34). The patrons at Blush are diverse in age — ranging from college-aged individuals to older, professional businessmen and couples. (Id. at 19, 25-6, 53).

The witnesses also advised that Blush’s crowds on Friday and Saturday nights are generally more boisterous because it is a recognizably younger audience and often includes bachelor and bachelorette parties, who tend to drink alcohol more heavily. (Id. at 20-1, 53). West testified that the larger, more aggressive crowds on the weekends are especially difficult to deal with in her role as head barténder. (Id. at 51-54). In any event, Bortz testified that he operates a clean establishment, which has had no significant issues with criminal activity by patrons or otherwise. (Docket No. 22 at 25).

The parties agree that Blush is not a nuisance bar and has recently had a disproportionately low number of criminal incidents at the site when compared to other locations within the City for the period of time from January of 2010 until the date of the hearing, including no reported criminal incidents from March 12, 2013 through April 25, 2013. (Id. at 77-8, 95). Blush does not hire bouncers or security guards to- provide security. (Id. at 36). Instead, it relies on its floor managers and other staff to enforce its business rules and to report any criminal activity to the authorities, as necessary. (Id. at 50-1).

G. Blush’s Hiring of Off-Duty City Police Officers Bortz testified that since 1966 his family has been supplementing their internal staff by hiring off-duty City police officers to work off-duty secondary employment details at their facilities. (Docket No. 22 at 17). More recently, Blush has typically hired an off-duty officer to work on weekend nights and on other dates which correspond to large events in the City given the increased number of patrons on those days and the greater need for crowd control. (Id. at 36).

The officer hired by Blush is stationed outside the business on 9th Street from approximately 10:00 p.m. until 2:30 a.m. (Id. at 46, 68). Bortz explained that he hires an off-duty officer in order to deter crime both outside and inside his establishment. (Id. at 18). One of the problems his business faces outside the establishment are aggressive panhandlers that bother his customers while entering and leaving the facility and when smoking outside. (Id. at 29-30). The main issues with crime inside Blush include theft of services and failure/refusal to pay for bar tabs. (Id. at 18, 66).

Bortz stated that the presence of the off-duty officer on 9th Street also provides a deterrent to crime at other businesses in the Cultural District and thus additional security for members of the public who are out in that area. (Id. at 18-9, 23-4).

Bortz and head bartender West believe that the off-duty officer is useful in many ways, including: preventing crimes from occurring inside the facility; dispersing crowds at the conclusion of the night; deterring aggressive panhandlers who bother customers and employees during and after business hours; and, providing security for its staff while they close the cash registers and return to their vehicles in an adjacent lot which is located across 9th street from the business. (Id. at 18-20, 48).

Bortz proclaimed that he chooses to hire City police officers rather than bouncers or security guards because of the superior level of service provided by the City police officers and the level of professionalism exhibited by the officers who have worked for his businesses in this capacity. (Id. at 18). He further testified that the presence of the officer insures that his business is secure and opined that the police presence makes his patrons more comfortable. (Id. at 18-9).

He believes that the officer’s presence on the weekends also deters crime during the week because potential criminals know that the officers are often stationed there but do not know when/if they are there on any given night. (Id.). Head bartender West agreed that the officer provides peace of mind that she and the other staff members are safe while working and later, when they return to their vehicles at the conclusion of a shift. (Id. at 48). H.

Blush’s Status as an Approved Secondary Employer and Activities Under the Program Since at least 2007, Blush has been an approved secondary employer under the Bureau’s Secondary Employer Program. (Id. at 31). Bortz testified that he filled out application forms and submitted them to the City for approval and that his business .was always approved. (Id.). (The actual forms were not admitted into evidence).

In exchange for the services performed by the officers, Blush pays the officer working the detail wages (time and a half) and also pays the City a cost recovery fee, which is presently $3.85 per hour. (Id. at 37, 83-4, 87-8, 167-68). It is undis-puted that Blush has always timely paid the applicable cost recovery fee to the City and any wages due to the officers working secondary employment details. (Id. at 86). Bortz explained that he has never had any issues with the City concerning the participation of his businesses in the secondary employer program. (Id. at 33).

Indeed, Acting Chief McDonald conceded that Blush had been approved as a secondary employer for many years by past Chiefs of Police, including her immediate predecessor Nate Harper. (Id. at 149-150). She also told the Court that Blush’s application was most recently approved in November of 2012, when the Bureau updated its records and required that all secondary employers submit updated applications in order to continue to participate in the program. (Id. at 176-77). Officer Bernard Joseph McMullan is a 19-year veteran of the City of Pittsburgh Bureau of Police. (Id. at 24).

He testified that he has worked a secondary employment detail at Blush since 1997. (Id.). His father was also a City police officer and worked the detail at Blush for a number of years prior to his assuming that duty. (Id. at 33, 59). Officer McMullan testified that the City always remains his primary employer, although he punches a clock at Blush to record his time and is paid directly by Plaintiff for his services. (Id. at 74-5).

He explained that he is not subject to the business rules of Plaintiff but is required to abide by the policies and procedures of the City set forth in Order 29-1 at all times. (Id. at 64-5). Officer McMullan offered credible and unrebutted testimony that he performed his secondary employment duties at Blush consistently with the Bureau’s policies and procedures and that he has never been requested to do anything inappropriate by Plaintiffs staff. (Id. at 63-5, 74).

In this regard, he generally remains stationed at his post outside the building on 9th Street unless called upon to assist with an alleged criminal incident inside. (Id. at 66-7, 74). On occasion, and often due to inclement weather, Officer McMullan will retreat his post inside the shared lobby area between Blush and the Edison Hotel for a period of time but he is never stationed inside Blush during the detail. (Id.).

Officer McMullan explained that his primary functions while working at Blush are to provide a police presence at the establishment and to respond to calls for police assistance from the business, as needed. (Id. at 59-60). He also helps to disperse the crowd after Blush closes at 2:00 a.m. and provides security while the staff cashes out registers and returns to their vehicles. Officer McMullan recounted that Blush has not had any significant criminal events take place during the dates and times that he worked there. (Id. at 60-1).

He agreed that he has not had the need to request back-up support from on-duty police officers since January 2010, that Blush has not made any such calls directly to 911 while he was stationed there and that he has made no arrests during that time period from incidents occurring inside the facility. (Id. at 67). However, Officer McMullan testified that he has responded to calls for assistance from other business owners in the area while working the detail. (Id. at 61-62, 67, 71).

Of note, in one instance, Officer McMullan responded to a general call on his radio that two armed robbers were located in the Cultural District. (Id. at 61-62). He made a positive identification of these armed individuals based on the description provided over the radio and was able to detain them. (Id.). When asked whether he believed that his presence at Blush brought disrepute upon the Bureau, Officer McMullan emphatically responded “absolutely not.” (Id. at 63).

He explained to the Court that throughout his tenure working the secondary employment detail at Blush, the Bureau has required him to annually fill out forms and request that he be able to continue working the detail. (Id. at 68-69). His applications to work at Blush have always been approved by the Bureau. (Id.). I. Acting Chief McDonald’s Decision of March 13, 2013 On March 13, 2013, Acting Chief McDonald sent Blush a one-line letter advising that it could no longer participate in the secondary employer program and terminated its status as an approved secondary employer. (Docket No. 22 at 39, 138).

Although this letter was not presented at the hearing nor admitted into evidence, Acting Chief McDonald explained that she advised Blush via the letter that it was a violation of § 13.6 of the Bureau’s Policy to permit officers to work secondary employment details at such an establishment because the officer’s presence there brought the “Bureau into disrepute.” (Id. at 168). Blush was not granted any ability to protest or appeal the decision. (Id. at 39-40; 167-68).

Acting Chief McDonald testified that she sent a similar letter to Cheerleaders, another adult entertainment establishment in the Strip District, and likewise terminated its status as an approved secondary employer. (Id. at 138). She did not terminate the status of any other approved secondary employers at that time and admitted that she had not investigated whether any other approved entities were in some way violating her

interpretation of Order 29-1. (Id. at 169). Acting Chief McDonald stated confidently that the sole reason for her decision visa-vis Blush was the fact that it operated a “strip joint” and admitted that she would not have taken such action if it operated only as a bar. (Docket No. 22 at 158). To this end, on cross-examination, she engaged in the following exchange with defense counsel: Q. So if I take adult entertainment outside of — if I were to remove adult entertainment from my client’s facility, would you agree that it is nothing more than your typical bar or night club? A. Yes.

If he closed the strip joint, •then there wouldn’t be an issue. It would just be a bar. Q. So the sole basis for your decision is because of the adult entertainment? A. That’s correct. (Id.). In addition, Acting Chief McDonald admitted that she had received no complaints from officers or from the public about having officers stationed at Blush specifically. (Id. at 158, 188). She also has never been to Blush on official duties as a City police officer or as a patron in an unofficial capacity and thus has never observed any inappropriate or criminal behavior by anyone at the facility. (Id. at 157, 182).

She likewise agreed that Blush was not a nuisance bar or in violation of any City zoning ordinances and admitted that Blush had no issues with outstanding invoices or.non-payment of the cost recovery fee to the City. (Id. at 158-59). Prior to making her decision, Acting Chief McDonald conferred with a few higher commanders'within the Bureau' who she said agreed with her decision but she did not advise the FOP of the forthcoming action nor consult with the City’s Legal Department to obtain a legal review of same. (Id. at 161-62, 164).

She also did not conduct any independent research on her own about whether the decision was appropriate. (Id. at 172). In addition, she acknowledged that the role of the officers stationed at Blush consisted of only patrolling outside the establishment and that they did not work inside the facility, unless called upon to enforce laws, as if they were on-duty. (Id. at 155-156). Based on her demeanor during her testimony and her explanation of the decision, it is clear to the Court that Acting Chief McDonald has.a strong personal distaste for adult entertainment facilities like Blush.

She repeatedly referred to the business as a “strip joint” throughout her testimony, a somewhat derogatory reference which was not used by any of the other witnesses at the hearing. (See generally Docket No. 22).

Acting Chief McDonald also offered little support for the foundation of her decision, stating that she made the decision based on her knowledge of the types of activities that take place at “strip clubs,” but admitted that she had never been inside any “strip club” and that her knowledge about “strip clubs” was obtained from discussions with her partner, information she had seen or heard in the media and other reading materials. (Id. at 182, 189).

When challenged on these points during cross-examination, she stated that most adults have an understanding of what goes on at a “strip club,” without any further explanation. (Id.). In addition, she explained to the Court her unsuccessful efforts to have former Police Chief Nate Harper deny another adult business’s application for participation in the secondary employment program a few years ago. (Id. at 149-50).

In that instance, she recommended that Chief Harper deny the application of “Controversy,” a “strip club” which was formerly located on Carson Street in the West End, because the surrounding communities had fought the placement of the club in that location. (Id.). Acting Chief McDonald believed that because of the considerable opposition to the club, that City police officers should not be working off-duty details there. (Id.).

Chief Harper overruled her recommendation and permitted City officers to work off-duty secondary employment details at Controversy until it closed for business reasons a few years ago. (Id.). Defendants also introduced some additional evidence concerning their position, including the IACP Model Policy and two news articles. Def. Exs. B-D.

Although the City has pointed out similarities between the language of the IACP Model Policy and Order 29-1, Acting Chief McDonald testified that she had not read the IACP Model Policy since around the time it was issued in 1996 and therefore had not relied on it reaching her decision. (Docket No. 22 at 139-40). Lieutenant Ford confirmed that she had not referenced the IACP Model Policy prior to the decision terminating Blush’s approved status. (Id. at 124-25).

Acting Chief McDonald further advised that she could not recall if she specifically read the two articles which were submitted prior to sending the letter to Blush. (Id. at 137). She did, however, have conversations with news reporters who had questioned her regarding why the City of Pittsburgh permitted its officers to work details at “strip clubs” while other cities, including Honolulu and New Orleans, among others referenced, did not. (Id. at 137).

Aside from the references in the news articles, there is no evidence before the Court which suggests that the City or the Acting Chief contacted the agencies in those cities to determine if the reporting of the restrictions placed on off-duty work of officers there was accurate. (See Docket No. 22). Acting Chief McDonald also admitted during cross-examination that she was unaware if any cities permitted officers to work details at “strip clubs.” (Id. at 164-65).

Instead, she suggested that a study of the policies employed by cities across the country is in the process of being completed as part of a broader review of the Bureau’s Secondary Employment Program as a whole. (Id.). However, she admitted that she had not yet seen any of the results of the pending study. (Id.). Acting Chief McDonald also testified that she had received some public support for her decision to terminate Blush’s approved status. (Id. at 180).

She mentioned that she had been thanked by members of the public for “taking a stand” in a number of instances including being approached in the mall and while walking in the City. (Id.). She also claimed that she had similar email communications supporting her decision with unnamed individuals, although no such documents were presented to the Court. (Id.). Ultimately, the decision to terminate Blush’s approved status as a secondary employer was made based on Acting Chief McDonald’s personal opinion that the presence of officers at Blush brought the Bureau in disrepute based on her

interpretation of § 13.6 of Order 29-1. (Id. at 160-61). The evidence presented to the Court demonstrates that the sole basis for this decision was the fact that Plaintiffs dancers and headliners engage in expressive conduct protected by the First Amendment, i.e., nude erotic dancing. (Id. at 155-56, 172). Acting Chief McDonald expressed that her

interpretation of the policy was correct and that the policy was previously disregarded by the prior Chiefs of Police who had permitted officers to work details at Blush and other adult entertainment businesses. (Id. at 179). She added that since she became Acting Chief of Police, she had the authority and obligation to enforce her

interpretation of the policy and stop the practice of permitting officers to moonlight at “strip clubs.” (Id.). However, Acting Chief McDonald’s opinion that a City police officer’s mere presence at the facility brought the Bureau into disrepute was not shared by any of the other witnesses who testified at the hearing. Plaintiffs witnesses, including Officer McMullan, testified that they did not believe that the presence of officers at the facility had any negative affect on the Bureau. (Id. at 63).

Defendants’ other witness, Lieutenant Ford, was not directly questioned concerning whether she felt that permitting secondary employment at Blush brought the Bureau in disrepute. (See Docket No. 22). Instead, Lieutenant Ford testified consistently with Acting Chief McDonald concerning their shared

interpretation of Order 29-1, which allegedly supported the challenged action in this case. J. Acting Chief McDonald’s

Interpretation of Order 29-1 To this end, Defendants’ witnesses explained that they believe that Order 29-1 grants the Chief of Police or his/her designee with the authority to approve or deny applications from entities seeking to become approved secondary employers and that secondary employment may be denied under § 13.6 “at a location that may tend to bring the Bureau of Police into disrepute or that may reduce the efficiency or usefulness of the officer as a member of the Bureau of Police.” Pl. Ex. 1 at § 13.6.

Ford and McDonald then noted that the phrase “bring the Bureau of Police into disrepute” is undefined in the Policy and turned to § 14.1.4 which lists “establishments that ... provide entertainment or services of a sexual nature” as types of “outside employment” which are not permitted because such employment “presentís] a threat to the status or dignity of the police profession” to provide clarification of the undefined phrase. (Docket No. 22 at 104-05). In this regard, Acting Chief McDonald testified, as follows: I think this definition [of

section 14.1.4] further explains 13.6. It was my understanding that a police officer could not work in these establishments off duty on an outside employment condition. Why would they be allowed to work in uniform in the same establishments? To me it didn’t make any sense, and I think it reinforced — it further defined what 13.6 was actually saying, which was my understanding of 13.6. I’m saying that I don’t agree to the fact that it’s not relevant to the secondary employment definition.

I’m saying that 13.6, which prohibits employment in any venue that would [bring] disrepute to the Pittsburgh Bureau of Police is not authorized. And it’s my understanding when you look down at outside employment, that that explains it further, although it’s not under secondary employment, but I’m saying 13.6 is further explained by this section. I looked at [section 14.1.4] in consideration of my

interpretation, but I based my decision on the violation of the policy based on 13.6. (Docket No. 22 at 155-56). K. Blush’s Operations After March 13, 2013 Decision Bortz testified that he received Acting Chief McDonald’s March 13, 2013 letter on a Thursday or Friday but that he had been advised by Officer McMullan a day or so earlier of the decision to terminate services at his business. (Id. at 35-6). He credibly advised that upon receipt of the letter from Acting Chief McDonald, he was “scared to death about St. Patrick’s Day” because,his business was left with little time to prepare before the St.

Patrick’s Day parade on Saturday of that week. (Id.). He stated that they were “lucky” that they did not have any significant incidents at Blush during that weekend because they no longer had a City police officer stationed at the business during peak hours. (Id.). Blush has operated since the March 13, 2013 decision without supplementing its core staff by hiring security guards or bouncers. (Id. at 22, 36, 50-1). Instead, Blush’s floor managers have increased their presence on the floor in an effort to deter potential problems with patrons and to secure the facility. (Id. at 50-1).

Bortz and West testified that they feel less secure without the police presence, especially at closing time around 2:00 or 2:30 a.m. (Id. at 24, 50-1). Bortz also stated that he has observed an increase in aggressive panhandlers outside his business. (Id. at 29-30). He and West both testified that they expect that Blush’s customers feel less secure as well but Bortz indicated that the true effect of the lack of a police officer was unknown after only a period of six weeks. (Id. at 30).

Despite same, the lack of a police presence at Blush on Friday and Saturday nights has not affected its ability to draw customers or its financial performance. Indeed, Bortz explained that that March and April of 2013 were “exceptional” months for his business given the number of large events in the City during those months, including the St. Patrick’s Day Parade, the Pittsburgh Pirates’ opening day, the NCAA Frozen Four and numerous Pittsburgh Penguins’ games. (Id. at 37).

In addition, it is undisputed that there have been no reported criminal incidents at Blush from March 13, 2013 until the date of the hearing, April 25, 2013. (Id. at 67). Further, the parties agree that, despite the termination of secondary employment services, the Pittsburgh Bureau of Police will respond to any 911 calls it receives from Blush as it does for any other individual or business reporting criminal activity. III. RELEVANT PROCEDURAL HISTORY Plaintiff filed its Complaint against Defendants in the Court of Common Pleas of Allegheny County on March 27, 2013. (Docket No. 1 at ¶ 1).

Defendants removed the case to this Court the following day. (Docket No. 1). Subsequently, on April 5, 2013, Plaintiff filed its Motion for Temporary Restraining Order or, in the Alternative, Motion for Preliminary Injunction and Memorandum of Law in Support of same. (Docket Nos. 3, 4, 5). Defendants responded on April 12, 2013 by filing a Reply, Brief in Support and Exhibits. (Docket Nos. 8, 9, 10). The Court held a motion hearing on April 25, 2013 during which the parties presented witness testimony and documentary evidence. {See Docket No. 22; Pl. Ex. 1-3; Def. Ex. B-D).

The parties then submitted proposed findings of fact and conclusions of law and supporting briefs on May 15, 2013. (Docket Nos. 23-27). As the evidentiary record with respect Plaintiffs Motion has now closed and the matter has been fully briefed and argued, it is now ripe for disposition. IV. LEGAL STANDARD The grant or denial of a temporary restraining order or a preliminary injunction is within the sound discretion of the Court. See American Exp. Travel Related Services, Inc. v. Sidamon-Eristoff, 669 F.3d 359, 366 (3d Cir.2012).

The primary purpose of preliminary injunctive relief “is maintenance of the status quo until a decision on the merits of a case is rendered.” Acierno v. New Castle County, 40 F.3d 645, 647 (3d Cir.1994). “Status quo” refers to “the last, peaceable, noncontested status of the parties.” Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir.2004).

The decision to issue a preliminary injunction and/or temporary restraining order is governed by the same four-factor test, wherein Plaintiff must demonstrate: “(1) that [it is] reasonably likely to prevail eventually in the litigation and (2) that [it is] likely to suffer irreparable injury , without relief. If these two threshold showings are made the District Court then considers, to the extent relevant, (3) whether an injunction would harm the [defendants] more than denying relief’ would harm the plaintiff ... ] and (4) whether granting relief would seiwe the public interest.” K.A. ex rel. Ayers v.

Pocono Mountain Sch. Dist., 710 F.3d 99, 105 (3d Cir.2013) (quoting Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 157 (3d Cir.2002)); see also Trefelner ex rel. Trefelner v. Burrell Sch. Dist., 655 F.Supp.2d 581, 589 (W.D.Pa.2009) (“The standard used to evaluate whether the issuance of a temporary restraining order is warranted is the same as that used to evaluate whether the issuance of a preliminary injunction is appropriate.”).

In reaching its decision on the request for injunctive relief, the Court sits as both the arbiter of legal disputes and trier of fact and is therefore tasked with resolving factual disputes and assessing the credibility of witness testimony. See, e.g., Hudson Global Resources Holdings, Inc. v. Hill, Civ. A. No. 07-132, 2007 WL 1545678, at *8 (W.D.Pa. May 25, 2007) (“A court considering whether to grant a preliminary injunction may assess the credibility of witnesses testifying before it at a preliminary injunction hearing, and base its decisions on credibility determinations.”). V.

DISCUSSION Plaintiff maintains that Acting Chief McDonald’s decision to terminate its longtime status as an approved secondary employer under the Bureau’s Secondary Employment Program due to her opinion that the presence of officers at Blush tends to bring the Bureau of Police into disrepute plainly infringes on its asserted rights under the Federal and Pennsylvania Constitutions. (Docket Nos. 3-5, 25-26). Defendants contend otherwise and suggest that Acting Chief McDonald was granted considerable discretion to make this decision based on her allegedly reasonable

interpretation of an internal, non-public Bureau Policy, i.e., Order 29-1, which had never been produced to Plaintiff prior to this litigation. (Docket Nos. 8-9, 23-24). However, Defendants admit that the sole basis for the Acting Chief s decision is the type of business that Blush operates and the fact that its dancers engage in nude, erotic dancing which constitutes expressive conduct protected by the First Amendment to the Constitution and

Article I,

Section 7 of the Pennsylvania Constitution. (Id.). Defendants likewise concede that the Acting Chief targeted only adult entertainment businesses, i.e., Blush and Cheerleaders, for such action and would not have terminated Blush if the business discontinued the adult entertainment at the facility and operated only its- bar. (Id.). Defendants also acknowledge that Blush was not provided with a pre-deprivation or a post-deprivation hearing with respect to the termination of its status as an approved secondary employer and denial of the ability to continue to participate in the program. (Id.).

In this Court’s estimation, and for the reasons that follow, Plaintiff has presented sufficient evidence to demonstrate that it is likely to prevail on its constitutional claims alleging violations of its rights to free speech and equal protection, and while Defendants have identified a significant or important governmental interest possessed by both the Chief of Police and the City in regulating the off-duty conduct of City police officers engaged in secondary employment details, wherein they are dressed in their full uniforms, armed with their Bureau-issued weapons and are expected to make full use of their arrest powers as if they were on-duty, Defendants have not presented legally sufficient evidence to justify the purely discriminatory governmental action taken by Acting Chief McDonald against Plaintiff.

See K.A., 710 F.3d at 105. Therefore, the Court will enter a preliminary injunction and return the parties to the status quo of their relationship prior to the issuance of Acting Chief McDonald’s decision until this case can be fully adjudicated on the merits. Acierno, 40 F.3d at 647. The Court now turns to its analysis of the relevant factors, starting with whether Plaintiff is likely to succeed on the merits of its claims. A.

Likely to Succeed on the Merits To establish a reasonable probability of success on the merits, the moving party must produce sufficient evidence to satisfy the essential elements of the underlying cause of action. See Punnett v. Carter, 621 F.2d 578, 582-83 (3d Cir.1980); McCahon v. Pa. Tpk. Comm’n, 491 F.Supp.2d 522, 527 (M.D.Pa.2007). Whether success is likely requires examination of legal principles controlling the claim and potential defenses available to the opposing party. See BP Chems. Ltd. v. Formosa Chem. & Fibre Corp., 229 F.3d 254, 264 (3d Cir.2000).

The mere possibility that the claim might be defeated does not preclude a finding of probable success if the evidence clearly satisfies the essential prerequisites of the cause of action. Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 173 (3d Cir.2001) (citing 11A Wright et al., supra § 2948.3). Stilp v. Contino, 629 F.Supp.2d 449, 457 (M.D.Pa.2009) aff'd and remanded, 613 F.3d 405 (3d Cir.2010).

Plaintiffs federal constitutional claims are brought pursuant to 42 U.S.C. § 1983, which provides that: [e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper-proceeding for redress.... , 42 U.S.C. § 1983.

This statutory provision “does not create substantive rights,” but instead “provides a remedy for the violation of rights conferred by the Constitution or other statutes.” Maher v. Gagne, 448 U.S. 122, 129, n. 11, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980). In order to establish a claim under the statute, a plaintiff “ ‘must demonstrate a violation of a right secured by the Constitution and the laws of the United States [and] that the alleged deprivation was committed by a person acting under color of state law.’ ” Kneipp by Cusack v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996) (quoting Mark v.

Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.1995)). Thus, a plaintiff cannot prevail without establishing an underlying violation of a federal -constitutional or statutory right. Collins v. City of Harker Heights, 503 U.S. 115, 119, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (remarking that § 1983 “does not provide a remedy for abuses that do not violate federal law”). “Section 1983 ‘itself contains no state-of-mind requirement independent of that necessary to state a violation’ of the underlying federal right.” Board of County Commissioners v.

Brown, 520 U.S. 397, 405, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (quoting Daniels v. Williams, 474 U.S. 327, 330, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). The remedies available under

section 1983 include prospective relief such as an injunction prohibiting future violations of federal law and a declaration that such state action violates federal’ law. See Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Plaintiffs state constitutional claim is not cognizable under § 1983 because it is a statute designed to protect federal rights and may not be used by litigants as a vehicle to enforce provisions of the Pennsylvania Constitution.

See 42 U.S.C. § 1983; see also Collins, 503 U.S. at 119, 112 S.Ct. 1061. “.No Pennsylvania statute establishes, and no Pennsylvania court has recognized, a private cause of action for damages under the Pennsylvania Constitution.” Pocono Mountain Charter Sch. v. Pocono Mountain Sch. Dist., 442 Fed.Appx. 681, 687 (3d Cir.2011) (citing Jones v. City of Philadelphia, 890 A.2d 1188, 1216 (Pa.Cmmwlth.Ct.2006) (“[Neither Pennsylvania statutory authority nor appellate case law has authorized the award of .money damages for violation of the Pennsylvania Constitution.”)).

However, Pennsylvania courts and the United States Court of Appeals for the Third Circuit have recognized that a plaintiff may maintain a 'successful cause of action directly under the provisions of the Pennsylvania Constitution for equitable remedies such as injunctive and declaratory relief. See Pocono Mountain Charter Sch., 442 Fed.Appx. at 688 (citing Moeller v.

Bradford County, 444 F.Supp.2d 316, 320-21 (M.D.Pa.2006) (“[I]t is well settled that individual plaintiffs may bring suit for injunctive relief under the Pennsylvania Constitution”) and Jones, 890 A.2d at 1216 (“[O]ther remedies, such as declaratory or injunctive relief ... are ... remedies un.der the Pennsylvania Constitution.”)). Plaintiffs claims and the defenses that have been raised to same must therefore be individually evaluated under the particular provisions of the Federal and Pennsylvania Constitutions, to which the Court now turns. 1.

First Amendment Claim Plaintiffs initial claim arises under the First Amendment to the Constitution of the United States. In the context of a First Amendment challenge, “[t]he most significant and, indeed, the dispositive prong of the preliminary injunction analysis ... is whether [Plaintiff] bore [its] burden of establishing that [it] had a reasonable probability of succeeding on the merits....” ACLU v. Ashcroft, 322 F.3d 240, 250-51 (3d Cir.2003).

The First Amendment provides: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. U.S. Const., Amend. I. The parties agree that Plaintiffs business features nude, erotic dancing by “dancers” and “headliners” and that these activities are protected by the First Amendment as expressive speech. See City of Erie v. Pap’s A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000).

However, the parties dispute whether Acting Chief McDonald’s decision to terminate Blush’s approved secondary employer status arid her further directive that City of Pittsburgh police are prohibited from working off-duty security details at adult establishments infringe on Plaintiffs rights protected by the First Amendment. (Docket Nos. 3-5, 8-9, 23-26).

Before addressing these matters, the Court must examine the nature of the relationship between the parties and the type of governmental action which is challenged by Plaintiff in this case because the parties also disagree on the level of deference that should be given to the challenged governmental action. (See id.). The parties’ disputes are understandable because the issues raised appear to be novel and the Court is unaware of any prior decisions which address a factual scenario similar to the case at bar.

Plaintiff contends that the Acting Chiefs decision terminating its ability to hire off-duty officers for secondary employment details is akin to a number of government benefit cases wherein little deference is granted to the government for taking unconstitutional sovereign action such as denying an individual’s entitlement to government benefits for engaging in protected speech. See e.g., Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Elrod v. Burns, 427 U.S. 347, 359, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958).

Defendants’ view is that the case is more properly analyzed as a personnel matter in the employer-employee context wherein the government is granted great deference to control the conduct of its employees, see Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), or, alternatively, that the government action in this case at most indirectly infringes on Plaintiffs First Amendment rights and should be evaluated under United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968).

The Court is also aware of a third line of cases addressing the First Amendment rights of government contractors, see Board of County Com’rs, Wabaunsee County, Kan. v. Umbehr, 518 U.S. 668, 678, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996); see also O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996), pursuant to which the balancing test set forth in Pickering is adapted to the facts and circumstances of the contractual relationship between the government and contractor.

In this Court’s estimation, the undisputed evidence establishes that, prior to March 13, 2013, the parties were engaged in an ongoing and long-standing commercial relationship whereby the Bureau was acting as a service provider and Plaintiff was a procurement contractor paying for government services. (Docket No. 22 at 17, 31, 36, 149-51, 176-77). It is likewise uncontested that the Bureau is the only service provider which is able to offer the secondary employment services of City police officers to businesses within the City limits. (Id. at 181, 185).

Further, the parties largely agree that the services provided by these officers are superior to any comparable services offered by private security companies because City police officers provide security for businesses in full police uniforms, carry Bureau-issued weapons and are expected to make full use of arrest powers, as needed, whereas private security guards -are not City police offices, have no arrest powers and must call 911 like any other citizen to effectuate an arrest of an individual alleged to have committed a crime. (Id. at 18-19, 59-63, 151, 181-82, 197).

While the nature of the services provided contain some elements of the entitlements discussed in the government benefits cases, and the ease also involves a concurrent restriction placed by the'government-employer on its personnel, it remains that the secondary employment services are provided by the City to private entities under a contractual agreement in exchange for financial compensation and that such services are provided in addition to general police services provided by the City to all members of the public and businesses; Givén same, the Court finds that this case is more properly evaluated initially under the rubric of the government contractor cases such as Umbehr and O’Hare rather than the government benefits cases or employer-employee cases argued by the parties.

See McClintock v. Eichelberger, 169 F.3d 812, 817 (3d Cir.1999) (“Protection of an independent contractor with a pre-existing commercial relationship with the public entity from retaliation by reason of his [protected activities] plainly protects his First Amendment rights.”). Under this precedent, it is well-settled that the government is able to terminate pre-existing service contracts with independent contractors; however, it may not generally terminate such relationships in retaliation for the contractor’s engaging in activities protected by the First Amendment.

See Umbehr, 518 U.S. at 678, 116 S.Ct. 2342; see also O’Hare Truck Serv., Inc., 518 U.S. at 716, 116 S.Ct. 2353. While the government may escape liability by demonstrating that it took the challenged action for reasons unrelated to the plaintiffs protected speech, if the plaintiff establishes that the government terminated its pre-existing contractual relationship for discriminatory reasons, the burden shifts to the government to justify its termination decision. See Umbehr, 518 U.S. at 678, 685, 116 S.Ct. 2342.

The level of deference granted to the government’s decision is a fact-based inquiry wherein the Court must balance the interests of the parties by examining the contractual relationship and the nature of the government action. Id. at 678, 116 S.Ct. 2342. If the government is determined to be exercising its sovereign power against the plaintiff, its decision must pass strict scrutiny. Id. If the governmental action is instead more properly characterized as exercising its contractual power, more deference is “due to the government’s reasonable assessments of its interests as contractor.” Id. (emphasis in original).

In this case, Defendants are not actively regulating Blush’s conduct (including the nude,' erotic dancing that takes place at the facility) or imposing any sovereign action on Blush. Rather, Acting Chief McDonald took action pursuant to a contractual agreement between the parties when Blush’s approved secondary employer status and ability to continue to participate in the program was terminated. Accordingly, the Court must weigh the government’s legitimate interests under the contract against Plaintiffs free speech interests. See Umbehr, 518 U.S. at 685, 116 S.Ct. 2342.

At the hearing, Acting Chief McDonald testified unequivocally that she terminated Blush’s status as an approved secondary employer and denied it the ability to continue to hire officers for secondary employment details based solely on the fact that it operates a “strip joint,” where its dancers engage in nude, erotic dancing which is protected as expressive conduct under the First Amendment. (Docket No. 22 at 158).

She also admitted, among other things, that neither Blush nor Officer McMullan had acted in any manner outside the scope of the Bureau’s policies and procedures such that termination of Blush’s secondary employer status was warranted for some other reason. (Id. at 155-59, 182).

The United States Court of Appeals for the Third Circuit has observed that a First Amendment retaliation claim is always actionable, even when the alleged retaliatory act is “relatively minor” or “trivial,” if it can be proven that the circumstances “would be sufficient to deter a person of ordinary firmness from exercising his or her free speech rights.” O’Connor v. City of Newark, 440 F.3d 125, 127-28 (3d Cir.2006) (internal quotation omitted). This “deterrence threshold” is “very low” and is met “by all but truly de minim-is violations.” Id. at 128.

The Court is persuaded that based on Acting Chief McDonald’s admissions and the termination of the contract, which is certainly more than a de minimis violation, Plaintiff has presented sufficient evidence under Umbehr and O’Hare to shift the burden to Defendants to introduce evidence to justify the termination of Blush’s contract due to its exercise of rights protected under the First Amendment. See Umbehr, 518 U.S. at 678, 685, 116 S.Ct. 2342.

Defendants’ justification of the decision is essentially two-fold: first, that the Chief of Police and the City have a compelling government interest in regulating the off-duty conduct of City police officers, including their participation in off-duty secondary employment details at certain locations; and, second, that the act of terminating Blush’s secondary employer status was supported by Bureau Policy, i.e., Order 29-1. (Docket Nos. 8-9, 23-24).

Defendants suggest that their interests outweigh Plaintiffs need for the secondary employment services of off-duty City police officers at its facility such that Plaintiff cannot demonstrate that it is reasonably likely to succeed on the merits of its First Amendment claim. (Id.).

In this Court’s estimation, the evidence presented by Defendants to this point is insufficient to conclude that Acting Chief McDonald’s exercise of purported contractual rights by terminating Blush’s secondary employment status was supported by the parties’ contract or the Bureau’s Policy and the evidence further fails to adequately demonstrate that the presence of officers working off-duty secondary employment details at Blush actually brought disrepute upon the Bureau as Acting Chief McDonald opined.

The parties do not meaningfully dispute that the Bureau and Chief of Police have a significant or important governmental interest in regulating the off-duty conduct of City police officers. (See Docket Nos. 3-5, 8-9, 23-26). To this end, it is well within the power afforded to the Bureau and Acting Chief McDonald to limit all off-duty employment of City police officers, or to the extent it permits same, proscribe reasonable limitations on such off-duty employment, as has been done by the Bureau under Order 29-1. See Rhodes v.

Smith, 273 S.C. 13, 15, 254 S.E.2d 49, 50 (1979) (“Regulations prohibiting [a]ll outside employment [of police officers] have been upheld.”) (citations omitted); see also State Troopers Non-Commissioned Officers Ass’n of New Jersey v. New Jersey, 399 Fed.Appx. 752, 755 (3d Cir.2010) (citations omitted) (“Several courts have recognized the government’s interest in preserving public trust as a legitimate objective underlying restrictions on secondary employment.”).

Subject to certain terms and conditions set forth therein, Order 29-1 permits City police officers to work secondary employment details for private entities whereby they effectively act as City police officers stationed outside a private business. See Pl. Ex. 1 at § 2.1 (secondary employment is “[a]ny employment of a member by a private entity that is conditioned on the actual or potential use of law enforcement powers by the police officer employee.”).

Given that the role of a police officer is to serve and protect the public and the authority vested in them to do so, including the power to make arrests, our society demands that police officers be held to a higher standard than ordinary citizens in many matters, particularly when dressed in the official uniform and wearing the badge of the police force. See e.g., Lodge No. 5 of Fraternal Order of Police ex rel. McNesby v. City of Philadelphia, Civ. A. No. 11-3256, 2013 WL 638615, at *11 (E.D.Pa.

Feb. 21, 2013) (“Because police are vital to protecting the public’s safety and are granted the power to make arrests and use necessary force to carry out that duty, they must be held to a higher standard of conduct than other City employees, which may include broader restrictions on First Amendment activity.”); Faust v. Police Civil Serv. Comm’n of Borough of State Coll., 22 Pa.Cmwlth. 123, 128, 347 A.2d 765, 768 (Pa.Cmwlth.Ct.1975) (“police officers are held to a higher standard of conduct than other citizens, including other public employees.”).

Therefore, the Bureau and Acting Chief clearly have an important or substantial governmental interest in regulating the conduct of City police officers who are engaged in off-duty secondary employment details as a method to preserve the public trust and to manage its personnel as employer. However, the Defendants’ important or substantial interest in regulating the conduct of City police officers is not squarely at issue when they enter the marketplace and contract with third parties to act as a provider of these services. See Umbehr, 518 U.S. at 678, 685, 116 S.Ct. 2342.

Thus, the governmental interests in the present matter must be determined from the facts and circumstances of the contractual relationship between the Bureau as the government service provider and the third party purchaser of such services, Blush. Id. In this Court’s estimation, the present record is inadequate to demonstrate that the Acting Chiefs actions were made in accordance with the terms of the parties’ long-standing Commercial relationship.

The primary justification for the Acting Chiefs decision which has been advanced by Defendants is that such action was authorized by the Bureau’s Policy on Secondary Employment. (Docket Nos. 23-24). Acting Chief McDonald’s

interpretation of Order 29-1, which was shared at least by Lieutenant Ford, is that the presence of officers in a secondary employment capacity at an adult entertainment establishment violates the Bureau’s Policy. (Docket No. 22 at 155-56). More specifically, they opine that the Chief of Police is granted discretion to approve or disapprove of applications of entities to become secondary employers and that under § 13.6 of Order 29-1 “secondary employment” may be denied at any location which the Chief determines “may bring the Bureau into disrepute.” (Id.).

They further reason that because § 14.1.4 specifically restricts officers from working “outside employment” at adult establishments, that § 13.6 should be interpreted to prevent secondary employment at adult establishments as well. (Id.). Having fully considered the matter, the Court does not believe that the evidence presented at the hearing is sufficient to demonstrate that Plaintiff agreed to be bound by § 13.6 of Order 29-1 and, -alternatively, even if Plaintiff was bound by all of the provisions of Order 29-1, the proper

interpretation of Order 29-1 does not grant the Chief of Police the specific authority to unilaterally terminate the - status of a previously approved secondary employer for any reasons aside from non-payment of the necessary cost recovery fee or perhaps acts of malfeasance or wrongdoing which otherwise violate the terms of the policy.

With respect to the Court’s finding that the evidence fails to demonstrate that Plaintiff was bound by Order 29-1, the record establishes that the parties’ commercial relationship began in 1966 and was maintained for many years without any written agreement. (Docket No. 22 at 17, 103-04, 151-52). However, since at least 2007, the parties have formalized their agreement in writing by virtue of an application/agreement form which is executed by Plaintiff and sent to the Bureau for approval by the Chief of Police. (Id. at 31, 179; Pl.

Ex. 1 at § 7.2 (noting requirement that secondary employer execute “Secondary Employment Application Agreement”). Most recently, Plaintiff submitted such a form to the Bureau in November of 2012 and it was approved by former Chief of Police Nate Harper, reauthorizing Blush to continue to be an approved secondary employer. (Docket No. 22 at 176-77, 179). As such, the parties’ relationship was governed by the November 2012 version of the agreemen

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