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Fairfax v. City of Philadelphia

United States District Court, E.D. Pennsylvania

November 19, 2014



HARVEY BARTLE, District Judge.

Plaintiff Kedar Fairfax brings this action under 42 U.S.C. §§ 1983 and 1988 against defendants City of Philadelphia (the "City"), Philadelphia Police Commissioner Charles Ramsey in his official and individual capacities, and police officers Anthony Mooney, Jr., Michael Levin, Vincent Visco, III, and John Martin. A John/Jane Doe is also named as a defendant. Now before the court are the parties' cross-motions for partial summary judgment filed under Rule 56 of the Federal Rules of Civil Procedure.

Fairfax, a private armed security guard, claims that he was arrested and detained on two occasions for carrying a firearm without a license even though he had a valid permit under a Pennsylvania statute permitting armed guards to carry a weapon to and from their places of employment. His firearms and ammunition were seized, but he was not convicted of any offense. According to Fairfax, the defendants have violated his Fourth Amendment protection against unreasonable seizures, which resulted in malicious prosecutions, and the defendants took his property without just compensation as guaranteed under the Fifth and Fourteenth Amendments. Fairfax seeks declaratory, injunctive, compensatory, and punitive relief for injuries arising from these violations.


Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Rule 56(c) states:

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations..., admissions, interrogatory answers, or other materials; or... showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c).

A dispute is genuine if the evidence is such that a reasonable factfinder could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). Summary judgment is granted where there is insufficient record evidence for a reasonable factfinder to find for the plaintiffs. Id. at 252. "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the factfinder could reasonably find for the plaintiff." Id.

When ruling on a motion for summary judgment, we may only rely on admissible evidence. See, e.g., Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 95 (3d Cir. 1999). We view the facts and draw all inferences in favor of the nonmoving party. In re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir. 2004). However, "an inference based upon a speculation or conjecture does not create a material factual dispute sufficient to defeat entry of summary judgment." Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12 (3d Cir. 1990).


The following facts are undisputed except as noted below. In 2012, Fairfax was employed as a freelance armed security guard at several places in Philadelphia. As part of that employment, he carried a loaded pistol and an extra magazine. On February 12, 2012 Fairfax was driving home from a bar where he had been providing security. As he pulled up to his house, defendants Levin and Mooney stopped him because his car had a broken headlight. When the officers approached his vehicle, Fairfax told them that he was "Act 235" certified.

Act 235, the Lethal Weapons Training Act, 22 Pa. Stat. Ann. § 41 et seq., provides "for the education, training and certification of such privately employed agents who, as an incidence to their employment, carry lethal weapons through a program administered or approved by the Commissioner of the Pennsylvania State Police." 22 Pa. Stat. Ann. § 42(b). Individuals who have been trained and certified pursuant to Act 235 may carry a firearm at their place of employment and while traveling to and from that location as long as they have a valid Act 235 certificate on their person. See 22 Pa. Stat. Ann. § 48(a); 18 Pa. Cons. Stat. Ann. § 6106(b)(6).

Fairfax showed his Act 235 certificate to Levin and Mooney and explained to the officers that he was returning home from his place of employment. Fairfax had had a license to carry firearms generally, but it had been previously revoked as a result of an unrelated incident. The defendants, suspicious of Fairfax's claim that he was returning home from work because of the late hour and of his lack of any uniform or badge, sought further information. They asked him whether he had a paystub with him. He did not. Indeed, Fairfax responded that he was paid in cash under the table. Concerned with this response, Levin and Mooney asked him to call his employer on the telephone to substantiate his claim. What happened next is disputed. Fairfax asserts that he could not reach his boss because his cell phone died and the defendants would not allow him to go inside his home to plug it in. Mooney on the other hand has testified that Fairfax did not have his employer's telephone number. The officers consulted with division detectives who instructed them to arrest Fairfax.

Levin and Mooney arrested him and in the process confiscated his weapon and the two loaded magazines that he had with it. He was charged with carrying a firearm without a license and carrying a firearm in public, and he was found not guilty of both charges in March 2013. His weapon and magazines were ...

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