PHILADELPHIA – The City of Philadelphia is looking to dismiss litigation brought by supporters of a monument to controversial former Philadelphia Mayor Frank Rizzo, feeling it is groundless and does not illustrate how the City violated its Home Rule Charter or the due process rights of the plaintiffs.
The Frank L. Rizzo Monument Committee first filed suit in the Philadelphia County Court of Common Pleas on June 29 versus the City of Philadelphia and its Mayor, James Kenney.
The action was removed to the U.S. District Court for the Eastern District of Pennsylvania by the City on July 1.
Rizzo served as Philadelphia Police Commissioner from 1968 to 1971 and Mayor of Philadelphia from 1972 to 1980. As police commissioner, the department reduced its hiring of black officers, was marred by charges of police brutality and once conducted a raid on the Black Panther Party’s offices in Philadelphia, a search that was later ruled to be illegal.
During his tenure as mayor, Rizzo opposed desegregation of the city’s public schools and construction of public housing projects, such as Whitman Park, in white neighborhoods.
After he helped to authorize an increase in the city’s wage tax, an attempt to recall Rizzo from the mayoral seat in the mid-1970’s failed. Just prior to the end of his two consecutive terms in office and facing a term limit at the end of that decade, Rizzo unsuccessfully attempted to amend the city charter in order to allow him to run for a third consecutive term. The measure was defeated.
Rizzo ran for mayor again in 1991, but passed away during the campaign at the age of 70. The statue at issue commemorating him was sculpted by artist Zenos Frudakis and unveiled for its placement outside the Philadelphia Municipal Services Building on Jan. 1, 1999.
Calls for the statute’s removal, in light of a legacy many Philadelphia citizens viewed as racist, were occasionally heard by the City’s government in the intervening years, but the statue ultimately remained in place.
However, during local demonstrations in late May and early June following the death of George Floyd at the hands of Minneapolis police officers, the statue was vandalized and nearly removed forcibly by protesters. It was then officially removed on June 3, by order of Mayor Kenney.
The plaintiff argues that action violated the City’s Home Rule Charter and seeks an injunction preventing alteration to, damage to or destruction of the statue by the defendants, for the defendants to immediately make the statue’s whereabouts known to the plaintiff to and make the statue available for recovery within seven business days.
The City responded to the call for an injunction on July 3, through a letter written by Deputy City Solicitor Jonathan Cooper.
“The City owns and is in possession of the statue. As the City has previously indicated in public statements regarding this matter, the City does not have – nor has it ever had – any plans to destroy the statue. Rather, it has always been the intention of the City to follow the terms of the mayor’s June 2, 2020 emergency order to remove the statue,” Cooper’s letter read, in part.
“The order says that the statue will be placed in secure storage until ‘a plan is developed to donate, relocate, destroy, or otherwise dispose of the Statue,’ and that such plan may be presented to the Philadelphia Art Commission for approval. The City reminded plaintiffs of the same before they decided to file suit.”
Cooper added the City would not “take any steps to alter or destroy the statue prior to the Court’s decision on the merits of plaintiff’s pending motion absent some unforeseeable emergent circumstance” and in the unlikely event that any such circumstance were to occur before a decision is rendered, the City would seek Court approval before proceeding with any further action.
On those grounds, Cooper’s letter concluded with the City requesting that the motion for a temporary injunction be denied.
UPDATE
The City filed a motion to dismiss the case on July 22, calling the claims “not actionable” and referring to them as “failing for a number of reasons.”
The first reason of which was that public health, safety and welfare were at risk if the statue were to stay, according to the City.
“During the protests in Philadelphia over the killing of George Floyd and police brutality, protestors attempted to topple the Statue, light it on fire, and destroy it. The City was concerned that if the statue remained in its public location, such efforts would be successful and individuals near the statue would be injured or killed,” per the dismissal motion.
“In addition, the presence of the Statue in front of the Municipal Services Building had placed the building – and the critical data, facilities, infrastructure, and technology that the building holds – at significant risk of damage and destruction. The City made the obvious determination that the Statue posed a risk to public health and safety, removed it from public display, and transported it to secure storage. The Statue will remain in a concealed and secure location until a plan is developed by the City and approved by the Art Commission.”
Further, the City asserted its actions were consistent with the City charter in its engagement with the Art Commission as to the fate of the statute, and did not violate due process.
“The Committee generically alleges it has property rights to the statue, Defendants purposely deprived it of those property rights without just compensation, and that such deprivation was a due process violation. The Committee does not specify whether its claim sounds in procedural or substantive due process, nor does it allege the requisite elements as to either species of due process claim,” per the motion.
“Instead, the Committee simply alleges a contract violation, and then concludes that this amounts to a constitutional violation. Additionally, there are simply no facts before the Court – whether pled in the complaint or contained in the executive order and/or any exhibits to the complaint – that could give rise to a substantive or procedural due process claim.”
The plaintiff is represented by George Bochetto of Bochetto & Lentz, in Philadelphia.
The defendants are represented by Anne B. Taylor, Benjamin H. Field, Jonathan Cooper and Lydia M. Furst, of the City of Philadelphia’s Law Department.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-03245
Philadelphia Count Court of Common Pleas case 200602036
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com