United States District Court, E.D. Pennsylvania
The First and Fourteenth Amendments' guarantees of free expression without retaliation and procedural due process apply to police sergeants terminated from their position. To obtain Section 1983 protection of these rights and defeat summary judgment, the police sergeant, like all other citizens, must adduce competent threshold evidence he engaged in First Amendment expressive conduct and his employer deprived him of due process often provided in a collective bargaining agreement. On August 3, 2014, an off-duty plain clothed police sergeant appeared in a police station where he was unknown and attempted to deliver three guns sans explanation. He never verbalized any opinion or intent about guns. When questioned, he concealed or misrepresented his name and birthdate as well as his public position. He refused to answer further questions and left the station creating further suspicion. After discovering he was a police sergeant in another district, the City placed him in a paid, but different, position while its Internal Affairs division investigated his August 3 conduct for six months before arresting him in February 2015 for lying to the police (with the criminal trial still pending) and then terminating his employment a month later. At all times, he is subject to a collective bargaining agreement. While the police officers' possible violations of the sergeant's Fourth Amendment rights will be resolved by the jury, we find no issues of material fact allowing the First and Fourteenth Amendment or Monell claims to proceed. In the accompanying Order, we grant Defendants' motion for partial summary judgment finding no expressive conduct requisite for a First Amendment retaliation claim, the collective bargaining agreement provided due process and there is no evidence the City failed to train or supervise its officers when addressing this unique situation under the well established Monell rubric.
I. Undisputed Material Facts
Plaintiff Brandon Ruff ("Ruff) was a City of Philadelphia ("City") police sergeant, assigned to the 16th District, as of August 3, 2014. Off-duty and wearing plain clothes on August 3, 2014, Ruff walked into the 35th Police District carrying a bag with three firearms which he planned to turn in believing that the City of Philadelphia permitted such activity under a "no questions asked" policy. He did not tell anyone at the 35th District of his job.
Ruff, when asked for identification, told the officers that he did not have his driver's license or state identification. Ruff never told the police officers of any intent to remove guns from the street or make Philadelphia safer. The parties dispute whether Ruff then left the station to make a phone call outside, or whether he attempted to leave to avoid further questioning, but agree that the 35th District officers followed him outside. Ruff alleges that one of the officers observed that he was carrying a gun in a holster, confiscated the weapon, and placed him in handcuffs and under arrest. The police detained Ruff at the police station for some time. Two lieutenants then followed him to his home and relieved him of his service weapon. The following day, the City removed Ruff from street duty and assigned him to Differentiated Police Response unit ("DPR").
On August 4, 2014, the police department's Internal Affairs division began investigating Ruffs August 3 activities at the 35th District. The City did not reduce his pay while on DPR. On August 25, 2014, Ruff filed an initial Complaint alleging the City and its officers violated his First, Fourth and Fourteenth Amendment rights. Ruff remained on DPR until Internal Affairs completed its investigation. On February 2, 2015, the District Attorney arrested Ruff and charged him with one count of False Identification to Law Enforcement Authorities and gave him a thirty (30) day notice of intent to terminate his employment. On March 5, 2015, the City dismissed Ruff from his employment determining he engaged in conduct unbecoming of a police officer in violation of the Police Code. The criminal charges of providing false identification to a police officer remain pending in state court.
II. Standard of Review
Ruff sues the City and individual police officers under 42 U.S.C. §1983 asserting (1) unlawful retaliation for exercising his First Amendment rights to protected speech and conduct; (2) deprivation of procedural due process; and (3) unreasonable force and unlawful arrest under the Fourth Amendment. In addition, Ruff seeks to hold the Philadelphia liable under a Monelltheory for failure to train and supervise its police force on proper procedures for arrest.
Defendants move for partial summary judgment arguing (1) no liability against the City directly under Monell; (2) Defendants are entitled to judgment on First Amendment retaliation claims as a matter of law; and, (3) no basis for a procedural due process claim as a matter of law.
"The court shall grant summary judgment 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). At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a "genuine" dispute as to those facts. Scott v. Harris, 550 U.S. 372, 380 (2007), citing Fed. Rule Civ. Proc. 56(c). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Id., citing Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id., quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-248 (1986)(emphasis in original); Dee v. Borough of Dunmore, 549 F.3d 225, 229 (3d Cir. 2008). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson,
477 U.S. at 248.
At this stage, our function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. Woods v. Pettine, No. 12-5608, 2015 WL 1072687, at *3 (E.D. Pa. Mar. 12, 2015). Where a non-moving party fails to sufficiently establish the existence of an essential element of its case on which it bears the burden of proof at trial, there is not a genuine dispute with respect to a material fact and the moving party is entitled to judgment as a matter of law. Tillman v. Redevelopment Auth. of the City of Philadelphia, No. 12-1505, 2013 WL 5594701, at *3-4 (E.D.Pa. Oct. 11, 2013) (internal citation omitted) aff'd, No. 13-4424, 2015 WL 294638 (3d Cir. Jan. 23, 2015).
A. Ruff cannot establish a First Amendment retaliation claim.
To defeat summary judgment on his First Amendment retaliation claim, Ruff must show evidence his anonymous August 3, 2014 gun delivery to the 35th District: (1) is protected speech or activity afforded First Amendment protection; (2) Defendants inflicted adverse action in response to his August 3, 2014 protected activity sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) has a causal link to the August 4, 2014 DPR assignment ...