The FOP lost its court battle against the DA Office’s alleged ‘Do Not Call list’ of cops

A Philadelphia judge on Thursday dismissed a lawsuit filed by the local Fraternal Order of Police in which the union had accused the District Attorney’s Office of violating officers’ rights by maintaining a list of officers with potential credibility concerns.

Common Pleas Court Judge Vincent L. Johnson said the list, sometimes referred to as the “Do Not Call list” because of the perception that it barred prosecutors from calling certain officers to testify, did not actually function that way.

Instead, Johnson said at the conclusion of a trial at City Hall, the list — which the DA’s Office calls the Police Misconduct Database — allows prosecutors to keep track of whether officers had any history of behavior that might hamper their credibility in court. And it ensures that prosecutors disclose that information to defense lawyers in cases involving those officers, as is required by law — but it does not cause improper reputational harm to the officers because the full list is not publicly available, Johnson ruled.

“There’s been no evidence of any kind ... that there is a ‘Do Not Call list,’” Johnson said, adding that the list was “just a database” that allowed prosecutors to make sound legal decisions about criminal cases and how or whether they might be impacted by an officer’s testimony.

District Attorney Larry Krasner said at a news conference afterward that the FOP’s lawsuit was a “frivolous, bogus, nothing-burger.” Still, he said, it required the office to spend hundreds of thousands of dollars in taxpayer money to fight the case in court.

Krasner also said the database was an attempt to ensure that his office is prosecuting cases in ways that will not be called into question on appeal, sometimes years later. Philadelphia has seen dozens of cases get overturned in recent years, and that has resulted in millions in taxpayer-funded settlements to those who were wrongfully convicted and incarcerated.

“Everything that this office has done in its efforts to have a police misconduct database ... was right, and it was righteous,” Krasner said.

John McNesby, president of the Fraternal Order of Police Lodge 5, said in a statement that the union disagreed with Johnson’s decision, but that he believed the DA’s Office “removed officers from this list as a result of this case.” He added: “Our rank-and-file police officers have added protections today because of this litigation.”

Krasner disputed that, saying: “None of that is remotely true.”

The FOP filed the lawsuit in 2018 against Mayor Jim Kenney, then-Police Commissioner Richard Ross, and the DA’s Office, contending that each had played a role in violating officers’ due process rights in connection with the list, which has evolved and taken several different forms in recent years.

The first list was created under former District Attorney Seth Williams. It identified a few dozen officers with documented instances of misconduct, and instructed prosecutors to take varying levels of caution when considering whether to rely on that officer’s testimony. But the list was kept secret, and defense lawyers said that violated the Constitution.

After Krasner was sworn into office in 2018, his administration expanded the ways in which prosecutors sought, maintained, and used such a list. Prosecutors began asking the Police Department to send over Internal Affairs reports about a variety of offenses committed by police, started disclosing those reports to defense lawyers if an officer was involved in a criminal case, and, in some instances, said prosecutors must secure supervisory approval before allowing an officer on the list to testify.

The DA’s Office said those practices were necessary to fulfill its constitutional obligations to provide all relevant evidence to defendants. And it stressed that it had never publicly revealed the list or provided details to the public about which officers were on it. Krasner on Thursday declined to say how many officers were currently in the database.

Still, the FOP argued that the list and any disclosure of names on it deprived officers of “the fundamental right to reputation protected by the Pennsylvania Constitution, and takes away opportunities for an officer to see their case through in court, potentially resulting in lost wages and professional harm.”

In the trial — which spanned several days last month and this month, and came after a long and winding path through state courts — the union called three officers to testify before Johnson. Each of them told of not being given the opportunity to challenge inclusion on the list, and had been subjected to unwarranted professional embarrassment as a result.

But Johnson said he believed the officers had suffered “no reputational harm” by being put on the list. One of the officers who took the stand testified that he was even promoted after he was notified that he was on it.

Staff writer Ellie Rushing contributed to this article.