PHILADELPHIA – Litigation brought by supporters of a monument to controversial former Philadelphia Mayor Frank Rizzo, which argued the City of Philadelphia violated its Home Rule Charter and the due process rights of the plaintiffs when it removed the statue in 2020, will now be heard in state court.
The Frank L. Rizzo Monument Committee first filed suit in the Philadelphia County Court of Common Pleas on June 29, 2020 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, 2020.
Rizzo served as Philadelphia Police Commissioner from 1968 to 1971 and Mayor of Philadelphia from 1972 to 1980. Under his reign 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 argued that action violated the City’s Home Rule Charter.
The City filed a motion to dismiss the case on July 22, 2020, 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.
Despite a series of non-binding mediation sessions, the parties reached no final resolution.
UPDATE
On Jan. 13, U.S. District Court for the Eastern District of Pennsylvania Judge C. Darnell Jones II dismissed the civil rights violation count under 42 U.S.C. Section 1983 and declined to exercise supplemental jurisdiction over the remaining state law counts, thereby sending the case back to the Philadelphia County Court of Common Pleas.
“If, under the circumstances present at the time, defendants had the right to remove the statue without violating the Committee’s property rights pursuant to the terms of the agreement, then it simply cannot be that the Committee’s property rights were somehow infringed for purposes of a procedural due process claim,” Jones said.
“This foundational inconsistency in the Committee’s argument is fatal to its procedural due process claim. It has not plausibly alleged that the June 3rd removal of the statue deprived it of a property interest. Again, any property interest asserted by the Committee would flow from the terms of the agreement; because there is no serious argument that the Statue’s removal violated that agreement, it could not have been unlawfully deprived of a property interest.”
Jones opined that the plaintiff’s argument that it “sufficiently pled a violation of a substantive due process right…based entirely on its assertion that it possesses a property interest in the statue stemming from the Philadelphia Home Rule Charter and its contract with the City” was incorrect, and irrelevant with regards to “whether an interest is deemed ‘fundamental’ under the United States Constitution, and whether that interest therefore implicates substantive due process considerations.”
As the remaining claims deal only with state law, Jones remanded the case to the trial court.
The plaintiff was represented by George Bochetto, David P. Heim, John A. O’Connell and Matthew L. Minsky of Bochetto & Lentz, in Philadelphia.
The defendants were 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