Kraig Graham v. City of Philadelphia

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-3372
KRAIG GRAHAM
v.
CITY OF PHILADELPHIA,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 02-cv-07794)
District Judge: Honorable Berle M. Schiller
Argued September 15, 2004
Before: ALITO, AMBRO, and FISHER, Circuit Judges.
(Filed: March 25, 2005)

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Elise M. Bruhl (Argued)
City of Philadelphia
Law Department
1515 Arch Street
One Parkway
Philadelphia, PA 19102
Attorney for Appellant
Tshaka H. Lafayette (Argued)
Lafayette & Associates
21 South 12 Street, Suite 1050th
Philadelphia, PA 19107
Attorney for Appellee
OPINION OF THE COURT
FISHER, Circuit Judge.
This appeal presents the issue of whether a public employee
terminated from employment because of an arrest, and then acquitted
of the charges leading to that arrest in a criminal trial, is entitled to a
name-clearing hearing as the remedy for a governmental entity’s
deprivation of the employee’s due process liberty interest. The
District Court concluded that criminal trials and name-clearing
hearings are distinct and therefore the former do not obviate the need
for the latter. We conclude, however, that Graham’s criminal trial
provided him ample opportunity to take and present evidence
supporting his innocence, and thereby jettisoned any due process

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obligation to grant him a name-clearing hearing. Accordingly, we
will reverse the judgment of the District Court.
I.
Plaintiff-Appellee Kraig Graham (“Graham”) was hired as a
probationary police officer in the Philadelphia Police Department
(“PPD”) on August 21, 2000. On November 1, 2001, an individual
walked into the PPD’s 17th District office and informed one of the
officers that there was a PPD police officer who was “having sex with
a thirteen year old girl.” Officers from the PPD’s Special Victims
Unit and Internal Affairs Division (“IAD”) investigated the report and
forwarded the evidence they compiled to the Philadelphia District
Attorney. After reviewing this evidence, the District Attorney
requested an affidavit for Graham’s arrest and a bail commissioner
subsequently issued an arrest warrant for Graham.
On December 3, 2001, Graham was arrested inside the IAD’s
office and charged with statutory sexual assault (a second degree
felony) and corrupting the morals of a minor (a first degree
misdemeanor) under Pennsylvania law. At the time of his arrest,
Graham was informed of his Miranda rights and had an opportunity
to confer with his lawyer and union representative, but declined an
opportunity to respond to the charges against him. The PPD
terminated Graham’s employment upon his arrest pursuant to its
policy of terminating any officer arrested for a crime.
Graham received a preliminary hearing on March 8, 2002,
after which his case proceeded to trial. On June 14, 2002, following
a criminal trial, a jury acquitted Graham of the charges. Graham then
sought reinstatement as a police officer with the PPD. The PPD
refused to reinstate Graham pursuant to its policy of not reinstating
any officer terminated because of an arrest, even where that officer is

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Johnson was the PPD’s Commissioner at the time Graham1
was acquitted and sought reinstatement and a name-clearing hearing.
Cerrone was Captain of the 12th District of the PPD, the District to
which Graham was assigned at the time of the alleged crimes.
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acquitted at trial. Graham also requested that the PPD provide him
a so-called “name-clearing hearing” at which he could present
evidence of his innocence of the crimes with which he had been
charged. The PPD denied this request.
II.
On October 9, 2002, following the PPD’s refusal to reinstate
him and grant him a name-clearing hearing, Graham filed a complaint
in the United States District Court for the Eastern District of
Pennsylvania, naming as defendants John Cerrone and Sylvester
Johnson, and alleging a violation of his Fourteenth Amendment due1
process liberty interest in reputation. Defendants filed a motion to
dismiss on November 26, 2002, arguing that Graham failed to
demonstrate a cognizable interest sufficient to support his due process
claim. The District Court denied the motion on grounds that the loss
of even at-will government employment can satisfy the so-called

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“Stigma plus” refers to the showing a plaintiff must make in2
order to recover on a claim for a violation of a liberty interest in
reputation under the Due Process Clause. As we have stated, such “a
plaintiff must show a stigma to his reputation plus some concomitant
infringement of a protected right or interest.” Ersek v. Twp. of
Springfield, 102 F.3d 79, 83 n.5 (3d Cir. 1996) (citing Paul v. Davis,
424 U.S. 693, 701, 709 (1976)). As here, the “plus” is generally
termination of employment. Because of his probationary status,
Graham was an at-will employee. We assume without deciding that
loss of at-will employment satisfies the “plus” requirement, but note,
as we did in Ersek, that we have not yet decided this issue. See id.
(noting that “[l]anguage in Clark [v. Township of Falls, 890 F.2d 611
(3d Cir. 1989)]” – requiring a showing of “a change or
extinguishment of a right or status guaranteed by state law or the
Constitution” in order to meet the “plus” prong, Clark, 890 F.2d at
619 – “may be read broadly to hold that the ‘plus’ must be a
protectible property interest.”). But see Codd v. Velger, 429 U.S. 624,
884 (1977) (stating in dicta that a name-clearing “hearing [is]
required where a nontenured employee has been stigmatized in the
course of a decision to terminate his employment[.]”) (emphasis
supplied).
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“plus” element of a “stigma plus” liberty interest claim. 249 F.2
Supp. 2d 563 (E.D. Pa. 2003).
On April 22, 2003, Graham filed a motion for leave to file an
amended complaint. He then filed an amended complaint, voluntarily
dismissing defendants Johnson and Cerrone, and substituting the City
as the sole defendant. Graham averred that the City had abridged his
due process liberty interest in reputation by “not providing hi[m] with
proper notice of, and an opportunity to refute, baseless criminal
charges lodged against him prior to his termination[.]” Graham
further alleged that the City committed due process violations by

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refusing to reinstate him or provide him with a name-clearing
hearing. He alleged that these violations stigmatized him and
inhibited him from securing future employment as a law enforcement
officer.
Following discovery, Graham filed a motion for summary
judgment. In his supporting memorandum, Graham stated that his
“reputation has been impugned in his community following his arrest
and some people view him as a ‘pervert’ and a ‘public enemy.’”
Graham cited numerous decisions from the courts of appeals for the
legal proposition key to his position: that “an actionable deprivation
of a liberty interest in one’s reputation may occur where government
terminates or refuses to rehire an employee amidst stigmatizing
public allegations of dishonesty, immorality, illegality or other charge
that might seriously damage his standing and associations in the
community.” He then enumerated what he considered to be
“undisputed” facts and asked the District Court to grant him summary
judgment and “order Defendant to provide [him] with a name-
clearing hearing.” Graham also appeared to suggest that a name-
clearing hearing might not be enough to compensate him for his
reputational injury or, perhaps, that a remedy alternative to a name-
clearing hearing would be appropriate.
On July 10, 2003, the District Court granted Graham’s motion
for summary judgment. The District Court agreed with Graham that
four critically relevant facts were undisputed: (1) that the City
terminated Graham’s employment amidst charges of illegal and
immoral conduct; (2) that the City made public statements about
Graham’s arrest and firing; (3) that Graham’s reputation has been
seriously damaged and employment opportunities have been
foreclosed; and (4) that Graham contends that the charges against
him, as to which he was acquitted by a jury, are false. 2003 WL
21949152, at *1 (E.D. Pa. July 9, 2003). The District Court

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concluded that Graham should prevail on his “stigma plus” claim
because it had already found the “plus” element satisfied in this case
in its order denying the original defendants’ motion to dismiss, and
there was “no dispute that [Graham] has suffered a stigma to his
reputation,” therefore establishing the “stigma” prong of the claim.
Id. at *2.
The District Court then specifically considered whether a
name-clearing hearing was the appropriate remedy for the City’s due
process violation. The Court devoted much of its discussion to our
decision in Ersek and whether Graham’s contentions involved a
factual dispute that “has some significant bearing on the employee’s
reputation[.]” Id. (quoting Ersek, 102 F.3d at 84 (citation omitted)).
The Court found the requisite factual dispute in Graham’s contention
that the charges against him were false because he did not in fact
commit the crimes. The Court summarily rejected the City’s
argument that Graham’s criminal trial ending with an acquittal
rendered any name-clearing hearing redundant. Relying on the
Supreme Court’s statement in United States v. One Assortment of 89
Firearms, 465 U.S. 354 (1984), that “an acquittal on criminal charges
does not prove that the defendant is innocent; it merely proves the
existence of a reasonable doubt as to his guilt[,]” 465 U.S. at 361, the
District Court found that “the purposes of a criminal trial and a name-
clearing hearing are distinct, and the former cannot fairly be taken to
obviate the need for the latter.” 2003 WL 21949152, at *3. The
Court therefore granted Graham’s motion for summary judgment and
ordered the parties to work out the procedures for a name-clearing
hearing; beyond permitting Graham to file a motion for attorney’s
fees, the District Court granted him no additional relief.
The City filed a timely notice of appeal from the District
Court’s order granting summary judgment. Graham filed a cross-
appeal on the District Court’s decision to limit his remedy to a name-

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We noted in Ersek that it “is unclear whether a plaintiff3
would be entitled to damages in addition to or in lieu of a hearing[,]”
but implied that damages might be available because a name-clearing
hearing might not always “cure all the harm caused by stigmatizing
government comments.” Ersek, 102 F.3d at 84 n.6. Because
Graham’s cross-appeal was dismissed, we need not address that
unresolved issue here.
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clearing hearing, but the cross-appeal was dismissed pursuant to Fed.
R. App. P. 3(a) and 42(b). We therefore consider only the propriety
of the District Court’s order requiring the City to provide Graham a
name-clearing hearing.3
III.
The District Court properly exercised jurisdiction under 28
U.S.C. § 1331. We have appellate jurisdiction under 28 U.S.C. §
1291. We apply plenary review to a District Court’s grant of
summary judgment. Morton Int’l, Inc. v. A.E. Staley Mfg. Co., 343
F.3d 669, 679 (3d Cir. 2003).
As discussed above, Graham claims that the City has deprived
him of the liberty interest in his reputation in violation of the Due
Process Clause. We made clear in Ersek that “[t]he principal relief
to which an individual is entitled should the government’s
stigmatizing comments rise to the level of a due process violation is
a hearing to clear his name.” Ersek, 102 F.3d at 84 (citations
omitted). See also Patterson v. City of Utica, 370 F.3d 322, 335 (2d
Cir. 2004) (“The appropriate remedy for a stigma-plus claim
premised on a plaintiff's termination from at-will government
employment is a post-deprivation name-clearing hearing.”).
Although the City makes several arguments in support of reversal, we
choose to resolve this case on the ground that Graham’s criminal trial

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Like Graham, Liotta had no due process property interest in4
his employment, and therefore had, at most, a due process liberty
interest claim in connection with his termination. See Liotta, 985
F.2d at 123.
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negates his entitlement to a name-clearing hearing because that trial
satisfied the requirements of the Due Process Clause.
We have found name-clearing hearings obviated by prior
hearings before. In Liotta v. Borough of Springdale, 985 F.2d 119
(3d Cir. 1993), Liotta, a borough administrator, was accused of
stealing borough funds. The borough council held a hearing to
determine whether to discipline him. Liotta, a council member and
the borough secretary (who had informed council of cash shortages
from the borough’s funds) testified at the hearing. We assumed that
Liotta was free to call any additional witnesses had he so chosen.
Following the hearing, council voted to terminate Liotta’s
employment.
Liotta subsequently brought an action against the council
members and the borough itself, including a claim that his discharge
deprived him of his protected interests under the Due Process Clause.
We discussed whether Liotta had alleged the existence of a protected
due process interest. But we ultimately rejected Liotta’s due process4
claim because the hearing he received “afford[ed] him notice and the
opportunity to respond to the allegations against him.” Id. at 123
(citation omitted). We found that it was “undisputed that the borough
council conducted an evidentiary hearing at which witnesses,
including Liotta himself, testified[,]” and noted that Liotta had failed
to “explain why this hearing did not afford him the process he was
due.” Id.

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This statement by the Court in One Assortment of 895
Firearms came in a context distinct from the one at issue here. There,
the Court considered “whether a gun owner’s acquittal on criminal
charges involving firearms precludes a subsequent in rem forfeiture
proceeding against those same firearms.” 465 U.S. at 355. The
Court’s comment about acquittals was in reference to the defendant’s
contention that his prior acquittal on the firearms charges collaterally
estopped the government from prevailing in the subsequent forfeiture
proceeding. Whether an acquittal following a criminal trial has
collateral estoppel impact on a subsequent civil proceeding differs
markedly from whether it satisfies the dictates of the Due Process
Clause in the context of a reputational injury claim. Collateral
estoppel requires identity between the issue in the prior and instant
proceeding, that the issue have been actually litigated and necessary
to the decision in the prior proceeding, and that the party sought to be
precluded from relitigating the issue had been fully represented in the
prior proceeding. See Henglein v. Colt Industries Operating Corp.,
260 F.3d 201, 209 (3d Cir. 2001) (citations omitted). As we explain
below, however, whether a prior proceeding satisfies the Due Process
Clause’s name-clearing hearing requirement turns generally on
whether the party seeking the hearing had notice and an opportunity
to be heard at the prior proceeding. We therefore are not bound by
the comment of the Court in One Assortment of 89 Firearms.
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As we did in Liotta, we find that Graham’s “prior hearing,”
his criminal trial, satisfied the City’s due process obligations and
obviated any need for a name-clearing hearing. As discussed above,
the District Court summarily disposed of the City’s argument in this
regard, relying solely on the United States Supreme Court’s comment
in One Assortment of 89 Firearms that “an acquittal on criminal
charges does not prove that the defendant is innocent; it merely
proves the existence of a reasonable doubt as to his guilt.” 465 U.S.
at 361. Relying on this statement, the District Court concluded that5

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At least one district court squarely has addressed the issue6
before us and found that a criminal trial obviates the need for a
subsequent name-clearing hearing. See Seeley v. Board of County
Commissioners for La Plata County, Colorado, 654 F. Supp. 1309
(D. Colo. 1987). In Seeley, plaintiff, a deputy county sheriff, was
charged with assaulting a prison inmate; on the same day the charges
were filed, he was suspended without pay. He was later terminated
following a judge’s finding that probable cause supported trying him
for the assault, but was acquitted following a jury trial. He instituted
a due process liberty interest claim against the sheriff’s department,
claiming an inability to secure law enforcement employment due to
his termination. The district court granted the department’s motion
for summary judgment, concluding that Seeley’s criminal jury trial
“constituted [the due process] opportunity” ... to “‘clear his name’
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the purposes of criminal trials and name-clearing hearings differ, and
therefore the occurrence of the former does not obviate the need for
the latter.
The key premise in the District Court’s reasoning appears to
be that a name-clearing hearing must provide one with the
opportunity to prove actual innocence of the alleged criminal conduct.
If this premise is legally sound, it would be difficult to dispute the
District Court’s conclusion, because an acquittal (i.e., not guilty
beyond a reasonable doubt) following a criminal trial is not ipso facto
a finding of actual innocence. But does the Due Process Clause
require that one claiming reputational injury caused by an arrest and
criminal charges be given an opportunity to prove actual innocence
of the crimes charged?
Whether a criminal trial resulting in an acquittal obviates a
subsequent name-clearing hearing requires us to consider the
demands of the Due Process Clause. The Supreme Court6

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publicly[.]” 654 F. Supp. at 1312 (citation omitted).
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“consistently has held that ‘some kind of hearing is required at some
time before a person is finally deprived of his property interests.’”
Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1, 16
(1978) (quoting Wolff v. McDonnell, 418 U.S. 539, 557-558 (1974)).
“‘[A] hearing, in its very essence, demands that he who is entitled to
it shall have the right to support his allegations by argument, however
brief; and, if need be, by proof, however informal.’” Craft, 436 U.S.
at 16 n.17 (quoting Londoner v. Denver, 210 U.S. 373, 386 (1908)
(citations omitted)).
“The procedural protections required by the Due Process
Clause are determined with reference to the particular rights and
interests at stake in a case.” Reynolds v. Wagner, 128 F.3d 166, 179
(3d Cir. 1997) (citing Washington v. Harper, 494 U.S. 210, 229
(1990)). In Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme
Court explained that “identification of the specific dictates of due
process generally requires consideration of three distinct factors:
First, the private interest that will be affected by the
official action; second, the risk of an erroneous
deprivation of such interest through the procedures
used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the
Government’s interest, including the function
involved and the fiscal and administrative burdens
that the additional or substitute procedural
requirement would entail.”
424 U.S. at 335 (citation omitted). A court must balance these factors
to determine what type of procedures would assure fairness in a
particular case. Id. at 347-49.

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We thus begin our Mathews analysis with the nature of
Graham’s interest here. Graham’s interests are genuine and weighty.
He has an interest in removing any tarnish to his reputation caused by
his arrest, the criminal charges which led to the arrest, and the events
that flowed from the arrest and charges. In so doing, he seeks, among
other things, to improve his prospects of securing future employment
as a law enforcement officer.
In examining the second prong of Mathews, we must consider
whether the criminal trial Graham received adequately protected his
due process liberty interest in his reputation so that the government’s
failure to provide him with a separate name-clearing hearing created
little to no risk of erroneous deprivation of his rights. Graham
nowhere suggests that his criminal trial was unfair or in any way
suppressed his ability to refute the allegations against him. Indeed,
as the Seventh Circuit observed in Greene v. Finley, 749 F.2d 467,
472 (7th Cir. 1984), a “criminal trial with its stringent procedural
safeguards and difficult burden of proof afforded plaintiff more
‘process’ than he ever could have expected to receive at an
administrative hearing ... under the ... Mathews standard.” 749 F.2d
at 470. Nor does Graham suggest that he might offer at a name-
clearing hearing new evidence or evidence not presented at trial
supporting his actual innocence. See id. at 472 (“Ordering defendants
to grant plaintiff a hearing so that plaintiff could present the same
evidence that was litigated at trial would serve no useful purpose and
does not in our view constitute process to which the plaintiff is
entitled.”). As such, Graham’s trial substantially vindicated his
reputational interest, and significantly reduced the prospect that he
would be erroneously deprived of that interest.
The second Mathews factor also directs consideration of the
“probable value” of any additional safeguards beyond the criminal
trial itself. Requiring a name-clearing hearing after a criminal trial

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We have never detailed the procedures, burdens and7
standards of proof applicable in a name-clearing hearing.
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resulting in an acquittal would add little value at best – indeed, as the
Second Circuit has put it, a name-clearing hearing under these
circumstances “would hardly [be] an unmixed blessing.” See Baden
v. Koch, 799 F.2d 825, 832 (2d Cir. 1986). On the one hand, Graham
would be permitted to put on evidence aimed at proving, perhaps by
a preponderance of the evidence, that he is actually innocent of the7
crimes with which he was charged. But the mere occurrence of a
name-clearing hearing would only subject Graham to further public
scrutiny. And the City would have the opportunity to challenge
Graham’s evidence and cast greater doubt on Graham’s innocence
than now exists following his acquittal.
The final Mathews element directs us to examine the
government’s interest. The government’s interest here is two-fold.
The government has a strong interest in preserving its officials’
ability to make personnel decisions and communicate the reasons for
those decisions to the public, particularly where, as here, the
decisions implicate matters of heightened public concern such as
alleged sexual assault of a minor by a police officer. See Patterson,
370 F.3d at 336 (noting that the “state interest at issue in a
stigma-plus claim has been defined as the interest of an executive
officer to make and explain important personnel decisions.”) (citation
omitted). The government also has an interest in conserving public
resources, and requiring a name-clearing hearing under these
circumstances would tend to undermine that interest.
Balancing these interests and factors leads us to conclude that
Graham’s criminal trial constitutes ample “process” obviating his
claim for a name-clearing hearing. There is no doubt that Graham has
a genuine interest in his reputation and livelihood. But he has not

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been denied an opportunity to protect his reputation – his criminal
trial provided him with more than adequate opportunity to refute the
allegations asserted against him. And the governmental interests in
making personnel decisions in the public interest, communicating
those decisions to the public, and conserving public resources, are
substantial.
We therefore hold that where, as here, following a criminal
trial, an individual acquitted at trial advances a stigma-plus claim
alleging reputational injury flowing from his or her alleged criminal
conduct, that individual is not entitled to a name-clearing hearing
under the Due Process Clause. Accordingly, we will reverse the
judgment of the District Court.

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