Nicholas Malfitano Jun. 5, 2015, 9:25am


PHILADELPHIA – A federal judge has granted a motion for partial summary judgment in favor of the City of Philadelphia, and against a former Philadelphia police sergeant arrested and terminated for conduct unbecoming of an officer.

Judge Mark A. Kearney, of the U.S. District Court for the Eastern District of Pennsylvania, recently concluded the charges of constitutional rights violations, lack of due process and Monell claim for failure to train officers levied by ex-Sergeant Brandon Ruff held no merit, and dismissed the City of Philadelphia as a defendant from the case.

Ruff, employed by the Philadelphia Police Department since 2006, had been a City police sergeant assigned to the 16th District, as of Aug. 3, 2014. On that day, Ruff was off-duty and wearing plainclothes when he 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.

Ruff did not inform anyone at the 35th District of his job or status as a fellow officer at that time.

When asked to present identification, Ruff stated he did not have his driver’s license or state identification in his possession. Whether Ruff left the station to avoid further questioning or to make a phone call is in dispute, but it is agreed officers of the 35th District followed Ruff outside the building.

Ruff claims 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. Officers of the 35th District detained Ruff at the police station for some time, and after releasing him, two lieutenants then followed him to his home and relieved him of his service weapon.

The next day, Ruff was relieved of street duty and re-assigned to the Differentiated Police Response (DPR) unit.

That same day, the Philadelphia Police Department's Internal Affairs division began investigating Ruff’s visit to the 35th District the previous day. Three weeks later, 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 into the matter.

On Feb. 2, the District Attorney arrested Ruff, charged him with one count of providing False Identification to Law Enforcement Authorities and gave him a 30-day notice of intent to terminate his employment.

On March 5, 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 charge of providing false identification to a police officer are currently pending in state court.

Ruff followed up his initial complaint with two amended versions in December and February against the City of Philadelphia and 13 of its police officers. In April, the defendants moved for partial summary judgment against Ruff’s claims, and Kearney presided over that process.

Kearney ruled on each count individually in this matter.

First, Kearney outlined that to defeat summary judgment on his First Amendment retaliation claim, Ruff had to present proof his anonymous Aug. 3, 2014, gun delivery to the 35th District was: “(1) is protected speech or activity afforded First Amendment protection; Defendants inflicted adverse action in response to his Aug. 3, 2014 protected activity sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and has a causal link to the Aug. 4, 2014 DPR assignment with pay, February 2015 arrest and March 2015 termination.”

Given the evidence presented, Kearney felt Ruff’s claims of First Amendment violations by the City and its officers failed at face value, in not showing an “expressive activity” on his behalf and dismissed them.

“Protection under the First Amendment requires some expressive activity. Ruff can show no genuine issue of material fact to provide conduct evidencing protected expression,” Kearney wrote.

“We find Ruff offered nothing more than a ‘bare assertion’ his conduct is expressive. Because this bare assertion falls short of his burden of proof, Ruff cannot proceed on his claim for First Amendment retaliation.

“Because we hold Ruff’s conduct under the particular facts of this case is not protected expression of First Amendment rights, it is unnecessary to decide whether Ruff’s so-called speech occurred as a public or private citizen.

“As a matter of law, Defendants’ acts subsequent to Ruff’s activity at the 35th District cannot give rise to a claim of retaliation for exercising First Amendment rights.”

In his decision, Kearney stated Ruff could not show evidence he was deprived of due process rights under both the Fourteenth Amendment and his union’s collective bargaining agreement (CBA) as a police officer, since he was not “deprived of a protected property or liberty interest” or that “the City’s available procedures did not provide due process of law.”

Kearney further commented Ruff did not contend the grievance procedures afforded to him by his CBA were inadequate or deprived him of his rights under the law.

Kearney also believed Ruff lacked evidence to sustain his Monell claim against the City.

“There is no evidence the City failed to adequately train officers concerning the presence of an anonymous person making a gun delivery or regarding the enforcement of the CBA. There is no evidence the City failed to train its officers on arrest and detention protocols when faced with a person making a gun delivery concealing his identity and leaving the station when questioned,” Kearney stated.

Kearney felt disputes over the events in question were not enough to create “genuine issues of material fact” in Ruff’s account.

The plaintiff is represented by Michael Pileggi of The Law Office of Michael Pileggi, in Philadelphia.

The defendants are represented by Brock Atkins of the City of Philadelphia Law Department.

U.S. District Court for the Eastern District of Pennsylvania case 2:14-cv-04940

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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