1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-31-1997

Green v. Phila Housing Auth

Precedential or Non-Precedential:

Docket 95-1908

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Recommended Citation

"Green v. Phila Housing Auth" (1997). 1997 Decisions. Paper 24.

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1

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 95-1908 

 ___________ 

 DONALD GREEN, 

 Appellant 

v. 

 PHILADELPHIA HOUSING AUTHORITY; 

 WILLIAM BERGMAN, INTERIM CHIEF OF POLICE; 

 DANIEL ROSENSTEIN, CAPTAIN; JOHN CRESCI, DEPUTY CHIEF, 

 IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES 

 AS OFFICIALS OF THE PHILADELPHIA HOUSING AUTHORITY 

 _______________________________________________ 

 On Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. Civil Action No. 94-cv-02885) 

 ___________________ 

 Argued June 12, 1996 

 Before: SCIRICA and ROTH, Circuit Judges

 and RESTANI, Judge, Court of International Trade* 

 (Filed January 31, 1997) 

 DAVID RUDOVSKY, ESQUIRE (ARGUED) 

 Kairys, Rudovsky, Kalman, 

 Epstein & Messing 

 924 Cherry Street, 5th Floor 

 Philadelphia, Pennsylvania 19107 

 Attorney for Appellant 

 

*The Honorable Jane A. Restani, Judge, United States Court of 

International Trade, sitting by designation. 
2

 M. KEVIN HUBBARD, ESQUIRE (ARGUED) 

 Philadelphia Housing Authority 

 2012 Chestnut Street 

 Philadelphia, Pennsylvania 19103 

 

 Attorney for Appellees 

 __________________ 

 OPINION OF THE COURT 

 __________________ 

SCIRICA, Circuit Judge. 

 The Philadelphia Housing Authority transferred one of 

its police officers from special drug enforcement duty to regular 

patrol duty after his appearance at a bail hearing as a character 

witness for a reputed organized crime associate. The officer 

contends his transfer violated his free speech and association 

rights. At trial, after the close of all evidence, the district 

court granted defendants judgment as a matter of law under Fed. 

R. Civ. P. 50. We will affirm.1

 I. Background

 The plaintiff, Donald Green, has been employed as a 

police officer for the Philadelphia Housing Authority Police 

Department since November, 1991. In February, 1994, he was 

assigned to the Housing Authority Police Department's Drug 

Elimination Task Force ("DETF"). The DETF is a special unit that 

works together with other law enforcement agencies to combat 

illegal drug activity on Philadelphia Housing Authority property. 

 

1. We have jurisdiction under 28 U.S.C. § 1291. Our standard of 

review is plenary. See Watters v. City of Philadelphia, 55 F.3d 

886, 891 (3d Cir. 1995). 
3

 Several weeks after his assignment to the DETF, Green 

received a telephone call from Norman Keller, a friend of over 

twenty years, asking him to testify as a character witness on 

behalf of his son, Herbert Keller, at a bail hearing in federal 

court. Pursuant to Housing Authority Police Department 

regulations, Green made a written request to his immediate 

supervisor for permission to testify. Green received approval, 

provided that he testify during his lunch hour and in civilian 

clothing. 

 On March 23, 1994, Green appeared at the bail hearing, 

and Keller's attorney introduced him by name and occupation. The 

magistrate judge then proceeded to read the charges pending 

against Keller, which included organized crime activity in 

connection with the Stanfa crime organization. Green, who until 

that time was unaware of the organized crime charges, told Keller 

he could not be associated with the case and left the hearing 

without testifying. 

 Later that day, an unidentified law enforcement officer 

told the DETF Captain, defendant Daniel Rosenstein, that Green 

had appeared as a character witness for a member of the Stanfa 

crime organization. Rosenstein ordered Green removed from 

"street" work and told him there would be an investigation into 

his possible ties with organized crime. Rosenstein then sent a 

memorandum to the Housing Authority Police Department's Deputy 

Chief of Police, defendant John Cresci, recommending such an 

investigation and requesting Green's temporary transfer to 

regular patrol duty pending its outcome. 
4

 Subsequently, Cresci discussed the matter with the 

Housing Authority Police Department's Acting Chief of Police, 

defendant William Bergman. They decided a departmental 

investigation was unnecessary because it would duplicate the 

ongoing federal investigation of the Stanfa crime organization, 

and also because they did not believe Green was affiliated with 

organized crime. But Cresci and Bergman agreed with Rosenstein 

that Green should be transferred. On March 31, 1994, Green was 

formally transferred from the DETF to regular patrol duty. 

 Green's duties changed as a result of his transfer. As 

a DETF officer, Green participated in drug raids, made drugrelated arrests, and was generally responsible for enforcing the 

drug laws. After the transfer to regular patrol duty, Green was 

principally assigned to work out of a building's security booth. 

 Green's salary was not reduced, although he claims his 

opportunities to work overtime (and consequently to earn overtime 

pay) decreased. 

 Green contends his transfer constituted unlawful 

retaliation for protected First Amendment activity. He brought 

this action against the Philadelphia Housing Authority, 

Rosenstein, Cresci and Bergman under: 42 U.S.C. § 1983 for 

violation of his First Amendment rights to freedom of speech and 

association; 42 U.S.C. § 1985(2) for violation of his right to be 

free from retaliation for his appearance as a witness in federal 

court; and the Pennsylvania Constitution for deprivation of 

reputation without due process of law. 
5

 At trial, defendants Bergman and Cresci testified they 

had no information or even suspicion Green was involved with 

organized crime,2 but that his transfer was nonetheless 

justified. They explained Green was transferred "in case there 

was anything where [the Housing Authority Police Department] 

might be embarrassed . . ." and because it "was right for the 

organization." (J.A. at 122, 164.) In their brief on appeal, 

defendants maintain they transferred Green out of their concern 

that the appearance of his ties to organized crime would "bring[] 

. . . discredit upon the image of the [Housing Authority Police 

Department], [and] endanger[] the plaintiff." (Appellee's Br. at 

10.)3

 At the close of evidence at trial, the district court 

granted defendants' Rule 50 motion for judgment as a matter of 

law on all claims. Green brought this appeal. In reviewing the 

district court's judgment, we must determine whether "viewing all 

the evidence which has been tendered and should have been 

admitted in the light most favorable to the party opposing the 

motion, no jury could decide in that party's favor." Watters v. 

City of Philadelphia, 55 F.3d 886, 891 (3d Cir. 1995) (quoting 

 

2. Bergman also testified that, if he had any such suspicion, he 

would have fired Green instead of merely transferring him. 

3. As far as we know, Green has not been reinstated to DETF 

duty. At trial, Cresci and Bergman testified that Green may be 

reinstated after the close of the Stanfa trial. Rosenstein 

testified somewhat differently, stating that Green's 

reinstatement turned on whether the Housing Authority Police 

Department found him innocent of wrongdoing. Green testified 

that Cresci told him his transfer was permanent. 
6

Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir. 

1993)). 

 II. Discussion

 A. Section 1983 (First Amendment)

 On appeal Green contends his First Amendment right to 

free speech was violated because he was transferred in 

retaliation for his appearance as a character witness at Keller's 

bail hearing. A public employee's claim of retaliation for 

engaging in a protected activity is analyzed under a three-step 

process. See Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir. 

1996); Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir. 

1995); Swineford v. Snyder County Pa., 15 F.3d 1258, 1270 (3d 

Cir. 1994). A plaintiff must first demonstrate the activity in 

question was protected. Second, the plaintiff must show the 

protected activity was a substantial or motivating factor in the 

alleged retaliatory action. See Swineford, l5 F.3d at l270. 

Finally, defendants may defeat plaintiff's claim by demonstrating 

"that the same action would have been taken even in the absence 

of the protected conduct." Id. The district court did not reach 

the last two factors because it resolved the first factor in 

defendants' favor as a matter of law. Accordingly, our 

discussion will focus on the first step, whether Green's 

appearance in court was a protected activity. 

 To qualify as a protected activity, Green's court 

appearance must satisfy the Pickering balancing test. See

Pickering v. Board of Educ. of Twp. High Sch. Dist. 205, Will 

County, 391 U.S. 563 (1968). First, the court appearance must 
7

constitute "speech . . . on a matter of public concern." 

Watters, 55 F.3d at 892. Second, the public interest favoring 

his expression "must not be outweighed by any injury the speech 

could cause to the interest of the state as an employer in 

promoting the efficiency of the public services it performs 

through its employees." Id. See also Pickering, 391 U.S. at 568 

("The problem in any case is to arrive at a balance between the 

interests of the [employee], as a citizen, in commenting upon 

matters of public concern and the interests of the State, as an 

employer, in promoting the efficiency of the public services it 

performs through its employees."); Versarge v. Township of 

Clinton N.J., 984 F.2d 1359, 1366 (3d Cir. 1993) ("On plaintiff's 

side of the balance, we must . . . consider the interests of the 

public in plaintiff's speech."). Determining whether Green's 

appearance is protected activity under Pickering is an issue of 

law for the court to decide. See Waters v. Churchill, 114 S. Ct. 

1878, 1884 (1994). 

 1. A Matter of Public Concern

 Initially we must determine whether Green's appearance 

as a character witness is a matter of public concern. See

Swineford, l5 F.3d at l270-72. We have held a public employee's 

appearance as a witness, even in the absence of actual testimony, 

is "speech" under Pickering. Pro, 81 F.3d at 1291. A public 

employee's speech involves a matter of public concern if it can 

"be fairly considered as relating to any matter of political, 

social, or other concern to the community." Connick v. Myers, 

461 U.S. 138, 146 (1983); see also Watters, 55 F.3d at 892; 
8

Versarge, 984 F.2d at 1364. This determination turns on the 

content, form and context of the public employee's speech. See

Watters, 55 F.3d at 892.4 The district court held Green's court 

appearance was a matter of public concern. We agree. 

 In Pro v. Donatucci, we recognized that a public 

employee's court appearance in response to a subpoena is a matter 

of public concern. 81 F.3d at 1291. The plaintiff in that case, 

Sisinia Pro, was subpoenaed by her employer's wife to appear as a 

witness at her employer's divorce proceedings. Pro appeared at 

the hearing but was never called to testify. She was fired 

shortly thereafter. Pro brought suit against her employer under 

42 U.S.C. § 1983, claiming he fired her in retaliation for 

protected activity. We found that Pro had a First Amendment 

right to appear in court despite the fact that the content of her 

speech was "purely private," because the form and context of her 

speech was of public concern, i.e. an appearance to deliver sworn 

testimony before an adjudicatory body. In explaining our 

holding, we stated, "[T]he public employee's interest in 

 

4. In Holder v. City of Allentown, 987 F.2d 188 (3d Cir. 1993), 

we explained: 

The content of the speech may help to characterize it as relating 

to a matter of social or political concern of the 

community if, for example, the speaker seeks to `bring 

to light actual or potential wrongdoing or breach of 

public trust' on the part of government officials. The 

form and context of the speech may help to characterize 

it as relating to a matter of social or political 

concern to the community if, for example, the forum 

where the speech activity takes place is not confined 

merely to the public office where the speaker is 

employed. 

Id. at 195 (citations omitted). 
9

responding to a subpoena and the judicial interest in having 

state employees respond to subpoenas without fear of employer 

reprisal justify our ruling. Moreover, . . . there is no 

`practical distinction between retaliation on the basis of a 

public employee's actual testimony and the retaliation that Pro 

alleges.'" Id. (quoting Pro v. Donatucci, No. 94-CV-6001, 1995 

WL 552980, at *4 n.3 (E.D. Pa. Sept. 18, 1995)). 

 We declined to rule in Pro whether a public employee's 

voluntary appearance in court, not under subpoena, would be a 

matter of public concern. See id. at 1291 n.3. That is one of 

the issues facing us here, and it merits some discussion. 

 Although in practical terms it may be inconsequential 

whether a witness has been subpoenaed (one can "volunteer" to 

receive a subpoena), there would appear to be a conceptual 

distinction that turns on a witness's will or desire to testify, 

especially in this context where the witness is a law enforcement 

officer. It should matter, therefore, whether a police officer 

chooses to interject himself into a bail hearing, which is an 

adversary proceeding, as a character witness for a defendant. On 

the other hand, there is a compelling reason to find Green's 

appearance to be a matter of public concern regardless of its 

voluntary nature. That reason, of course, is the integrity of 

the truth seeking process. 

 For guidance we will turn, as we did in Pro, to a line 

of cases from the Court of Appeals for the Fifth Circuit holding 

a public employee's truthful testimony, even if voluntary, is 

inherently a matter of public concern protected by the First 
10

Amendment. See id. at 1288 (citing Reeves v. Claiborne County 

Bd. of Educ., 828 F.2d 1096, 1100-01 (5th Cir. 1987); Johnston v. 

Harris County Flood Control Dist., 869 F.2d 1565, 1578 (5th Cir. 

1989), cert. denied, 493 U.S. 1019 (1990)). As the Fifth Circuit 

observed, "When an employee testifies before an official 

government adjudicatory or fact-finding body he speaks in a 

context that is inherently of public concern. Our judicial 

system is designed to resolve disputes, to right wrongs. We 

encourage uninhibited testimony, under penalty of perjury, in an 

attempt to arrive at the truth. We would compromise the 

integrity of the judicial process if we tolerated state 

retaliation for testimony that is damaging to the state." 

Johnston, 869 F.2d at 1578 (quotations and citations omitted); 

see also Smith v. Hightower, 693 F.2d 359, 368 (5th Cir. 1982) 

("[T]he first amendment protects the right to testify truthfully 

at trial."). 

 Identical concerns are implicated by Green's voluntary 

appearance at Keller's bail hearing, where the court depends upon 

accurate testimony by those familiar with the defendant in order 

to determine whether the defendant is likely to flee or endanger 

the community. See 18 U.S.C. § 3142 (judicial officer must 

release defendant on bail unless such release "will not 

reasonably assure the appearance of the person as required or 

will endanger the safety of any other person or the community."). 

 The utility of uninhibited testimony and the integrity of the 

judicial process would be damaged if we were to permit unchecked 

retaliation for appearance and truthful testimony at such 
11

proceedings. Not only would "the first amendment right of the 

witness be infringed by this type of coercion, the judicial 

interest in attempting to resolve disputes by arriving at the 

truth would be in jeopardy. Furthermore, a witness who succumbed 

to any real or imagined coercion could also be subject to a 

charge of perjury." Reeves, 828 F.2d at 1100. 

 In Pro, we held the context of a courtroom appearance 

raises speech to a level of public concern, regardless of its 

content. Pro, 81 F.3d at 1291; see also Johnston, 869 F.2d at 

1578 ("The goal of grand jury proceedings, of criminal trials, 

and of civil trials is to resolve a dispute by gathering the 

facts and arriving at the truth, a goal sufficiently important to 

render testimony given in these contexts speech `of public 

concern.'"); Reeves, 828 F.2d at 1100 (holding sworn subpoenaed 

testimony is matter of public concern, even though the content of 

the testimony "did not concern the type of political speech which 

lies at the core of first amendment freedoms"); Langley v. Adams 

County, Colo., 987 F.2d 1473, 1479 (10th Cir. 1993) ("The law is 

clearly established that the `First Amendment protects the right 

to testify truthfully at trial.'"). But see Wright v. Illinois 

Dep't of Children & Families Servs., 40 F.3d 1492, 1505 (7th Cir. 

1994) (declining to adopt Fifth Circuit analysis); Arvinger v. 

Mayor and City Council of Baltimore, 862 F.2d 75, 79 (4th Cir. 

1988) (emphasizing the importance of content over context). We 

can discern no reason why a voluntary appearance would eliminate 
12

the public interest. Therefore, we hold that Green's voluntary 

appearance as a character witness is a matter of public concern.5

 2. Balance of Interests

 The question remains whether Green's free speech 

interest in testifying as a character witness is outweighed by 

any injury the speech could cause to the interests of the Housing 

Authority Police Department as employer. See Waters, 114 S. Ct. 

at 1884; Pickering, 391 U.S. at 568; Swineford, l5 F.3d at l272. 

 If Green's court appearance could potentially disrupt the work 

of the Housing Authority Police Department, and this potential 

for injury outweighs the public's interest in Green's speech, 

then judgment for the defendants is proper. See Waters, 114 S. 

Ct. at 1890 (weighing First Amendment "value" of speech against 

"the potential disruptiveness of the speech"). The district 

court granted the Housing Authority judgment as a matter of law, 

finding Green's appearance injured the DETF's interests in 

minimizing departmental disruption and maintaining an environment 

of trust and security. 

 

5. Judge Roth would note that had this Court not held in Pro v. 

Donatucci, 81 F.3d at 1288-91, that a public employee's potential 

sworn testimony before an adjudicatory body was a matter of 

public concern and protected by the First Amendment, she would 

dissent on the issue of whether the public employee's actions 

here were a matter of public concern. She dissented in Pro on 

the basis that compliance with a subpoena is not speech. She 

does not, however, believe that she can distinguish the present 

case from Pro on the sole basis that here the public employee had 

not been subpoenaed. Were Pro not precedent, she would disagree 

with the panel that a non-subpoenaed appearance by a public 

employee, much less than a subpoenaed appearance, is a matter of 

public concern. She would nevertheless concur in the ultimate 

conclusion that, due to their potential disruptive impact, the 

actions here were not protected speech. 
13

 Normally, this balancing test would be an issue of fact 

and would remain in the hands of the fact finder. But where the 

presence of factual disputes would normally preclude the court 

from ruling as a matter of law, Supreme Court precedent requires 

the trial court to do so. "Although such particularized 

balancing is difficult, the courts must reach the most 

appropriate possible balance of the competing interests. . . . 

[Courts] are compelled to examine for [them]selves the statements 

in issue and the circumstances under which they [are] made to see 

whether or not they . . . are of a character which the principles 

of the First Amendment . . . protect." Connick, 461 U.S. at 150 

& n.10 (quoting Pennekamp v. Florida, 328 U.S. 331, 335 (1946)). 

 In weighing the competing interests, we begin with the 

proposition that all court appearances are matters of public 

concern. That is so because all court appearances implicate the 

public's interest in the integrity of the truth seeking process 

and the effective administration of justice. But at the same 

time, it would appear that the strength of the public's interest 

can vary based on the nature of the court appearance. See Pro, 

81 F.3d at 1291 n.4 ("We have not held that courtroom testimony 

should receive `absolute' First Amendment protection.") 

 It is of some moment, therefore, that Green appeared 

voluntarily, not in response to a subpoena. As we have held, a 

voluntary court appearance is a matter of public concern. We 

encourage voluntary testimony so that parties and courts have 

access to all available information and witnesses. But the 

public interest favoring subpoenaed testimony is even stronger. 
14

It implicates not only the integrity of the truth seeking process 

and the effective administration of justice, but also the 

public's interest in protecting court-ordered conduct. See id.

at 1290 ("A subpoenaed witness has no choice but to appear at a 

trial, unless he is willing to risk a finding of contempt.") 

(quoting Pro v. Donatucci, No. 94-CV-6001, 1995 WL 552980, at 

*13-14 (E.D. Pa. Sept. 18, 1995)). As Green appeared 

voluntarily, it would seem that the public's interest in his 

court appearance is somewhat more limited than it would be if his 

appearance were subpoenaed. 

 Nor do we find it significant that Green appeared as a 

witness at a bail hearing as opposed to a trial. Reputation 

testimony is probative in either. In addition, while some 

commentators have implied that character testimony is less 

important than fact testimony,6 we believe no distinction should 

be made between character and fact testimony for Pickering

purposes. Both are essential to the truth seeking process.7

 

6. See, e.g., McCormick on Evidence 549 (Edward W. Cleary ed.) 

(3d ed. 1984) ("[I]n many situations, the probative value [of 

character evidence] is slight and the potential for prejudice 

large."). 

7. See, e.g., United States v. Logan, 717 F.2d 84, 87-93 (3d 

Cir. 1983) (discussing the importance of character testimony, and 

recommending a jury instruction that, "[w]here a defendant has 

offered evidence of good general reputation for truth and 

veracity, . . . the jury should consider such evidence along with 

all the other evidence in the case" and that "[e]vidence of a 

[criminal] defendant's reputation . . . may give rise to a 

reasonable doubt"); see also Committee on Model Crim. Jury 

Instructions Within the 8th Cir., Manual of Model Crim. Jury 

Instructions for the District Courts of the 8th Cir. 89 (1994) 

(some circuits now favor a jury instruction that character 

evidence should be considered together with all other evidence in 

a case; the "standing alone" charge is seen as an unwarranted 
15

 In comparison, the interests of the Housing Authority 

Police Department as employer are very significant. They include 

successfully fighting drugs and crime, protecting the safety of 

its officers and other members of the community, fostering trust 

and confidence among its officers and between its officers and 

other law enforcement drug units, and protecting the Housing 

Authority Police Department's reputation. As defendants state in 

their brief on appeal, they were concerned "that the plaintiff's 

voluntary appearance, as a narcotics officer, at a bail hearing 

on behalf of a reputed organized crime associate would bring 

discredit upon the [Housing Authority Police Department], 

endanger the plaintiff and tarnish the image of the [Housing 

Authority Police Department] in the eyes of the residents of 

public housing the department serves . . . ." (Appellee's Br. at 

5.) These interests merit substantial protection, and any risk 

of departmental injury or disruption weighs heavily under the 

Pickering balancing test. 

 We agree with the district court that there was a risk 

of departmental injury based on the "potential disruptiveness of 

the speech." Waters, 114 S. Ct. at 1890. First, an unnamed 

police officer telephoned Rosenstein to report Green's appearance 

at Keller's hearing. Second, Green testified at trial he heard 

comments from co-workers and friends that "[g]uys wouldn't want 

to work with me because they were afraid that I knew people in 

the mob . . . ." (J.A. at 59.) Finally, because of the nature of 

(..continued) 

invasion of the jury's special function in deciding what weight 

to give any particular item of evidence.). 
16

DETF work, any perceived breach of trust and security could 

reasonably constitute a threat to the DETF, its officers and its 

relationships with other police drug units and the community it 

serves. This risk of injury to the Housing Authority Police 

Department outweighs the public interest favoring Green's speech. 

 Judgment as a matter of law for defendants is proper under 

Pickering. 

 Green argues he should not be held responsible for 

creating the potential disruption because he followed 

departmental procedures and testified only after receiving 

express permission from his superiors. But a public employee in 

a sensitive position like Green cannot turn a blind eye to the 

possible consequences of his voluntary testimony. The 

responsibility must lie with Green to investigate the nature of 

the criminal charges, and to bear any risks associated with his 

voluntary court appearance.8

 Green also claims that the Housing Authority Police 

Department's reasons for his transfer were pretextual, i.e. that 

the potential for departmental disruption was not the true cause 

for his transfer. But the test in Waters is an objective one for 

"potential disruptiveness." Waters, 114 S. Ct. at 1890; see also

Watters, 55 F.3d at 896. Therefore any pretext is irrelevant to 

our weighing analysis. 

 

8. Nor do we believe this case raises questions of equitable 

estoppel. For example, if Green had been granted permission to 

testify after advising his supervisors that Keller was an 

organized crime associate, the Housing Authority Police 

Department might well be estopped from imposing sanctions. 
17

 The second step in the Pickering analysis, whether the 

protected activity was a substantial or motivating factor in the 

transfer decision, would be a factual issue for the jury. But 

under Pickering we do not reach this step. Nor do we reach the 

third step in the analysis, whether defendants would have 

transferred Green even in the absence of his speech. Therefore 

we will affirm the district court. 

 3. Conclusion

 Implicit in Green's claims is the notion his transfer 

was unfair under the circumstances. Green voluntarily chose to 

testify as a character witness for the son of a friend. He 

followed the applicable rules and received permission to testify, 

although neither the Housing Authority Police Department nor he 

knew of the organized crime association. He appeared at the bail 

hearing, but when he realized the nature of the charges facing 

Keller and his association with organized crime, he left the 

hearing without testifying. His superiors testified they do not 

believe he has any association with organized crime and, in fact, 

if they had, Green would have been fired. 

 Nonetheless, the Housing Authority Police Department 

contends Green's actions were potentially disruptive to the 

proper functioning of the department. Whether there is potential 

disruption is an issue of law for the court. We have found there 

was a likelihood of disruption and that it outweighs the 

interests favoring the protected activity. 

 Had Green been fired instead of reassigned, the penalty 

would have appeared especially severe in view of his supervisors' 
18

belief that he had no association with organized crime. It may 

be argued, therefore, that the degree of harm should be factored 

into the test. But if the proper standard is the potential for 

disruption, it is difficult to see how the extent of harm can be 

taken into account. 

 Of course, different facts can change the calculus. In 

weighing the protected interest against the likelihood of 

disruption, it is especially significant that a law enforcement 

officer whose primary duty is to fight drugs testified as a 

character witness for a defendant who was part of an organization 

well known for its involvement in the drug trade. The 

correlation could not be more direct nor more damaging to the 

Housing Authority Police Department's role. A more oblique 

correspondence might well bring a different result under the 

weighing process. 

 B. Section 1985(2)

 Green also brought a claim under 42 U.S.C. § 1985(2), 

alleging defendants illegally conspired to transfer him in 

retaliation for his appearance as a character witness in federal 

court. But, as we have held, defendants' transfer of Green was 

not unlawful. For the reasons we have stated and for those given 

by the district court, we hold the dismissal of Green's § 1985(2) 

claim was proper. 

 C. State Constitution

 Green also sued defendants under the Pennsylvania 

Constitution for deprivation of reputation without due process. 

The district court rejected Green's deprivation of reputation 
19

claim as a matter of law because Green could not establish a 

causal connection between his reputation injury and the 

defendants' conduct. We agree this claim was properly dismissed. 

 III. Conclusion

 For these reasons we will affirm the judgment of the 

district court.9

 

9. In light of our decision to uphold the district court's 

dismissal of Green's claims, there is no need to discuss the 

other issues on appeal: whether the trial court erred in 

excluding certain evidence of harm to plaintiff's reputation and 

in ruling that punitive damages could not be awarded.