Former NIU cop's lawsuit dismissed vs university amid renewed criminal action over sex assault allegations

By Scott Holland | Jul 23, 2015

Northern Illinois University  

A federal judge in Rockford has dismissed the lawsuit of a former Northern Illinois University police officer whose termination continues to embroil the DeKalb school in legal battles.

Andrew Rifkin lost his job as an NIU police officer after being charged with felony criminal sexual assault in connection with an October 2011 incident involving an NIU freshman. After a judge ruled the police department intentionally withheld written statements from witnesses, DeKalb County State’s Attorney Clay Campbell dropped the original charges and the university fired longtime Police Chief Donald Grady in February 2013. Grady, who is African-American, has a civil rights lawsuit pending against NIU in federal court in Chicago.

On Jan. 22, 2013, Rifkin sued NIU, Grady and police investigators Kartik Ramakrishnan and Jason John. One month later, Richard Schmack, the newly elected DeKalb County State’s Attorney, obtained a new indictment against Rifkin. That criminal case is unresolved.

On Tuesday, July 21, U.S. District Judge Philip G. Reinhard, of the Northern District of Illinois’ Western Division, dismissed Rifkin’s civil claims. There were four initial counts, but Rifkin contended only two. Reinhard noted those complaints are based on the U.S. Supreme Court decision Brady v. Maryland, which holds evidence suppression is a violation of due process rights.

Rifkin maintains he would not have faced the original December 2011 Campbell indictment had police not suppressed statements corroborating his claim of innocence, and, further, that Schmack would not have pressed charges in 2013 except for the original Campbell prosecution.

Reinhard also notes a second alleged Brady violation. Rifkin claims John was in possession of text messages the alleged sexual assault victim allegedly sent Rifkin over nine days following the incident at question.

“(Rifkin) asserts these transcripts were delivered by the alleged victim to defendant John on or about Oct. 29, 2011,” Reinhard wrote, “but were withheld by him and not disclosed to (Campbell) or to (Rifkin). Unlike the witness statements discussed above, these transcripts have never been disclosed and Rifkin alleges they have been destroyed.”

Reinhard said because the witness statements came to light before the Schmack-led indictment, Rifkin has them at his disposal and can use them in his criminal defense effort. While acknowledging prior failure to disclose, that suppression “has been cured as to any potential impact on the verdict.”

Whereas Rifkin attempted to use the precedent of Mosley v. Chicago, suggesting Campbell may not have gone forward with the prosecution if he had all the evidence, Reinhard notes the Mosley case involved an acquittal at trial. The appeals court that ruled in favor of Mosely “expressly stated it was reserving the question whether a Brady violation claim can be recognized where exculpatory evidence is withheld and, therefore, not available at trial, but the trial results in an acquittal anyway.”

Since Rifkin’s criminal trial is not completed, Reinhard holds Rifkin has no standing for a Brady claim, which led the judge to dismiss Rifkin’s claims against Grady and Ramakrishnan.

The text message claim against John is more complex, Reinhard wrote, because as Rifkin was the recipient, he knows the content of the messages. But that knowledge, the judge said, is not as useful to his defense as a transcript. However, since the criminal trial is still pending, the judge said Rifkin’s litigation in this regard must also be dismissed.

Reinhard dismissed that count without prejudice, while the remaining three counts were dismissed with prejudice.

In his civil suit, Rifkin is represented by Bruce E. Brandwein, of the firm of Brandwein and Smolin of Chicago.

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