A firefighter sued a city and a private attorney hired by the city to conduct an internal investigation of his conduct for violation of his civil rights under 42 U.S.C. Sec. 1983. The firefighter was suspected of malingering while supposedly off work on account of illness. The firefighter argued that the attorney's order to him to produce building materials stored at his home violated his Fourth and Fourteenth Amendment rights. He had been seen buying the building supplies and the issue was whether he had been installing the building materials rather than being ill. The U.S. Supreme Court held that the private attorney was entitled to qualified immunity along with other individual defendants despite not being a city employee. A private individual temporarily retained by a city to carry out its work is able to seek qualified immunity from civil rights liability. In this case, the city needed the attorney's experience and expertise in employment law. Filarsky v. Delia, #10–1018,   132 S. Ct. 1657; 2012 U.S. Lexis 3105.   
     Court denies qualified immunity to a deputy sheriff who entered the private residence of a dead person residence and carried away personal property, some of which he stored and some of which he sold. Qualified immunity applies to Fourth Amendment claims relating to his initial entry on the property and securing the property of the deceased. But there can be no qualified immunity for claims that he misappropriated property for his own benefit. Mathis v. County of Lyon, #08-17302, 2011 U.S. App. Lexis 1956 (9th Cir.).
     City escapes having to pay a million dollar judgment to a former firefighter for violation of his FMLA rights. The firefighter filed for bankruptcy but concealed the FMLA verdict from his creditors. The principle of judicial estoppel prevents a party from asserting contrary positions in separate legal actions. Reed v. City of Arlington, #08-11098, 2010 U.S. App. Lexis 19319 (5th Cir.).
     Seventh Circuit overturns a $302,474 "breach of fiduciary duty" judgment against the former chair of the Board of Fire and Police Commissioners, who admitted that he had appointed unqualified police officers at the behest of the then mayor. "Acting in a way that might be contrary to one's own beliefs, but doing so on the orders of those who control one's employment, is commonplace and surely does not in itself violate any fiduciary duty." Gross v. Town of Cicero, #06-4042, 2010 U.S. App. Lexis 17911 (7th Cir.).
     Federal law, effective Jan. 2011, requires the reporting of litigation and worker's comp. settlements where Medicare has a financial interest. Self-insured entities are subject to a $1,000 daily fine, plus double damages for a failure to comply. Section 111 of the Medicare Secondary Payer Act, 42 U.S. Code §1395(b)(2); 42 CFR §411.20.
     Arizona appellate court upholds a $5 million medical malpractice verdict, of which 28.5% was assessed to a physician who offered the deceased no treatment, and only gave an assessment of his job-related back injury. The three-judge panel rejected the argument that it was not foreseeable that the person examined would die of a drug overdose four years later. “... even absent a formal doctor-patient relationship, a doctor conducting an Independent Medical Examination (“IME”) owes a duty of reasonable care to his or her patient. ... Foreseeability is not a factor when deciding whether a duty exists.”  Ritchie v. Krasner, #1 CA-CV 08-0099, 2009 Ariz. App. Lexis 78.
     Witnesses, including a police chief, have absolute immunity for their testimony at police officer's disciplinary hearing. Absolute immunity is justified by the functions it protects, not by the person to whom it attaches. Rolon v. Henneman, #06-3890-cv, 2008 U.S. App. Lexis 402 (2nd Cir.) citing Forrester v. White, #86-761, 484 U.S. 219 (1988).
     Fifth Circuit affirms a holding that denied qualified immunity to a police chief that fired a detective who refused to waive her Miranda rights as part of a polygraph exam. Termination for invoking one's constitutional rights violated clearly established federal law. Hancock v. Baker, #07-40794, 2008 U.S. App. Lexis 1847 (5th Cir.).
     The American Bar Association advises that defense counsel ethically can contact putative members of an employees' class action lawsuit before the court certifies class membership. ABA Comm. on Ethics & Prof. Responsibility Formal Opin. #07-445.
     Tenth Circuit reinstates a malicious prosecution damages claim in the case of a former corrections officer that was criminally charged with sexual misconduct with inmates. He alleged the sheriff and a sergeant delayed or withheld exculpatory evidence that prolonged the investigation. Robinson v. Arapahoe Co. Sheriff, #06-1170, 2007 U.S. App. Lexis 7219 (10th Cir.).
     Federal appeals court concludes that the Civil Service Reform Act of 1978 precludes a civil rights damage lawsuit filed against his superiors by a former federal probation officer. Bell v. LaBorde, #06-40056, 2006 U.S. App. Lexis 25589 (5th Cir. 2006). {N/R}
     Striking a subordinate employee with three-ring binder and loudly berating her was not a Fourth Amendment "seizure," that would entitle the sheriff's employee to recover against her supervisor. Reyes v. Maschmeier, #05-12720, 2006 U.S. App. Lexis 9886 (11th Cir. 2006). {N/R}
     Law firm's inadequate representation in an arbitration proceeding results in a $10 million malpractice finding. TCW/Camil Holding, #03-10717, 2005 U.S. Dist. Lexis 18033 (D. Del. 2005). {N/R}
     Second Circuit holds that a mayor and chief of were entitled to qualified immunity in a suit brought by officers because disciplinary proceedings continued against them, following their acquittal of criminal charges of abusive conduct. Deters v. Lafuente, 03-7129, 368 F.3d 185, 2004 U.S. App. Lexis 9651, 21 IER Cases (BNA) 520 (2d Cir. 2004). {N/R}
     Mississippi sheriff's deputy, who was fired because he was a "liability risk" loses a court challenge to his termination. He was fired because he precipitated two lawsuits and the insurance carrier threatened not to renew the county's professional liability policy. Burleson v. Hancock Co. Sheriff's Dept., #2002-CC-00411, 872 So.2d 43, 2003 Miss. App. Lexis 1063 (2003); cert. denied 2004 Miss. Lexis 467 (2004); U.S. Sup. Ct. cert. petit. filed, #04-180 (8/3/2004). {N/R}
     New Jersey Public Employment Relations Cmsn. restrains arbitration over the issue of whether an officer, who was sued after a shooting, should be re-armed. The issue is not arbitrable because an award could limit a city's policymaking power to determine the conditions it allows officers to be armed. City of Newark v. F.O.P. Lodge 12, #SN-2004-13, P.E.R.C. #2004-36, 2003 NJPER (LRP) Lexis 176, 29 NJPER 174 (N.J. PERC 2003). {N/R}
     A county, the director of corrections, and internal investigators were entitled to have a suit for false arrest dismissed. The suit was filed by a corrections officer who alleged that probable cause was lacking because the female inmate, that brought a complaint of sexual misconduct, had a history of mental illness. Knowledge of a victim's psychiatric history "is not enough to destroy probable cause or strip officers of qualified immunity." Escalera v. Lunn, #03-7121, 361 F.3d 737, 2004 U.S. App. Lexis 7517 (2nd Cir. 2004). [2004 FP Sep]
     Police chief had no duty to prevent an off-duty assault of one officer by another. The adoption of a code of conduct did not impose a duty on the chief of police to protect others from harm. Murdock v. Croughwell, SC#16987, 268 Conn. 559, 2004 Conn. Lexis 165 (2004).[2004 FP Aug]
     Citing Lapides v. Board of Regents, 535 U.S. 613 (2002) the Ninth Circuit holds that if a state agency removes an employment-related civil rights lawsuit from state to federal court, it waives any Eleventh Amendment immunity. Embury v. King, #02-15030, 2004 U.S. App. Lexis 4860 (9th Cir. 2004). {N/R}
     The Illinois legislature has restored the right of state workers to sue for violation of the ADA, ADEA, FMLA, FLSA and the 1964 Civil Rights Act. It waives state immunity, under the 11th Amendment, to employment-based federal civil rights statutes. 2003 Amendments to the State Lawsuit Immunity Act, Public Act 93-0414, 745 ILCS 5/1.5. {N/R}
     Appeals court rejects claims of retaliation, national origin and age discrimination. Postal service properly "concluded that reinstating an employee who had been terminated because of an arrest for selling drugs inside a post office facility was not in the best interest of USPS even though the criminal charges were subsequently dismissed following a mistrial. Sarullo v. U.S. Postal Service, #01-4203, 2003 U.S. App. Lexis 25847 93rd Cir. 2003). {N/R}
     Federal appeals court finds that a judgment for sexual harassment is not dischargeable in federal bankruptcy proceedings. Jones v. Svreck, #02-044, 300 B.R. 133, 2003 Bankr. Lexis 1302, 42 Bankr. Ct. Dec. 4 (1st Cir. Bank. 2003). [2004 FP Feb]
     New York's highest court holds that an administrative finding of guilt by a state regulatory body, in a sexual harassment complaint, does not prevent the accused from denying liability in a damage suit for sexual assault. The doctrine of collateral estoppel did not apply. Jeffreys v. Griffin, 1 No. 120, 2003 NY Int. 125, 2003 N.Y. Lexis 3409 (2003). {N/R}
     Sheriff's employees, whose First Amendment rights were violated when management took adverse employment actions against them because of their union organizing activities, did not have legal standing to pursue a claim for indemnification by the state for damages that the sheriff's estate did not have the funds to pay. St. George v. Gordon, #SC-16673, 264 Conn. 538, 825 A.2d 90, 2003 Conn. Lexis 256, 20 IER Cases (BNA) 435 (Conn. 2003). {N/R}
     Civil Service Board members are not entitled to absolute immunity from suit, in a case where the provisional fire chief challenged his suspension, and claimed the process was tainted by racial discrimination. Fifth Circuit affirms result, and the Supreme Court has denied review. Turner v. Houma Fire and Police Civ. Serv. Bd., #99-31168, 229 F.3d 478, 2000 U.S. App. Lexis 25950; reh. den. 2000 U.S. App. Lexis 29744 (5th Cir. 2000); Cert. den. #03-367, 2003 U.S. Lexis 8223 (2003), affirming 2002 U.S. Dist. Lexis 12924 (E.D. La. 2002). [2004 FP Jan]
     A divided federal appeals court holds that a Michigan city was not obliged to pay the $300,000 settlement agreed to by two police officers that stole a woman's cocker spaniel. Hudson v. Coleman, #01-1653, 2003 U.S. App. Lexis 20865, 2003 FED App. 0367P (6th Cir. 2003). [Dec FP 2003]
     Seventh Circuit holds that a §1983 suit against state officials for injunctive relief is not barred by the Eleventh Amendment. Nanda v. Univ. of Illinois, #01-3448, 303 F.3d 817, 2002 U.S. App. Lexis 19105, 89 FEP Cases (BNA) 1616 (7th Cir. 2002). {N/R}
     Violations of the California state constitution are not "self executing" and do not create a right to sue for damages. Degrassi v. Cook, #B136407, 85 Cal.App. 4th 163, 2000 Cal. App. Lexis 912, 102 Cal.Rptr. 2d 46; Rev. Gtd. #S094248, 2001 Cal. Lexis 1161. {N/R}
     A police department is not separately suable under the civil rights act, Paredes v. City of Odessa, 128 F.Supp.2d 1009 (W.D. Tex. 2001). {N/R}
     That fact that a body cavity search of a corrections officer by management deviated from the institution's formal policies and procedures "does not render it unreasonable under the Fourth Amendment." Even if the department's policy on body cavity searches of employees was violated, "such a violation does not in itself rise to constitutional dimensions." Leverette v. Bell, #00-1407, 247 F.3d 160, 17 IER Cases (BNA) 877 , 2001 U.S. App. Lexis 6255 (4th Cir.). [70-1]
     Ninth Circuit affirms a trial court ruling that refused to dismiss the Fourth Amendment damage claims brought by Harris against 13 named agents. Harris v. Roderick, 126 F.3d 1189, 1997 U.S. App. Lexis 26387; cert. den. 1998 U.S. Lexis 969. {N/R}
     Individual managers and supervisors cannot be held civilly liable for wrongful termination under the Calif. Fair Employment & Hous. Act or at common law. Reno v. Baird, 18 Cal.4th 640 (1998). {N/R}
     Federal appeals court affirms dismissal of a civil rights suit filed by a police officer, against a prosecutor who refused to accept criminal charges brought by him against citizens, absent corroborating evidence. Officer claimed the D.A.'s action was in retaliation for his exercise of free speech. The D.A.'s office said the officer gave untruthful testimony in a prior case. Roe v. City & Co. of San Francisco, 109 F.3d 578, 1997 U.S. App. Lexis 5422 (9th Cir. Cal. 1997). {N/R}
     Colorado appellate court overturns a $640,000 verdict for an employee and against his employer. Panel holds that an employer cannot be sued for a negligent internal investigation and a failure to promptly exonerate the employee from a sexual harassment complaint. Williams v. Continental Airlines, #95CA0469, 943 P.2d 10, 1996 Colo. App. Lexis 260, 12 IER Cases (BNA) 13. {N/R}
     Federal court concludes there is no duty for a governmental entity to provide fire suppression and rescue services. Response to a 911 call does not create a "special" relationship or trigger an affirmative duty of protection under the Due Process Clause of the federal Constitution. Estate of D.A. Morgan v. Mayor of Hampton, 1996 U.S.Dist. Lexis 519 (E.D.Va.). {N/R}
     Federal court refuses to dismiss suit by a police officer against the present and former police chiefs, alleging a willful failure to enforce police regulations and inadequate training, supervision and discipline of officers. Failure to perform discretionary acts creates liability when the failure subjects an identifiable person to imminent harm and the suit alleges intent or wanton conduct. Velez v. New London, 903 F.Supp. 286 (D.Conn. 1995). {N/R}
     Ala. corrections officials were entitled to qualified immunity in suit by former officer who was discharged following her arrest for shoplifting. Reeves v. Thigpen, 879 F.Supp. 1153 (M.D.Ala. 1995). {N/R}
     Government agrees to pay estate of a firefighter $250,000, to settle a wrongful death claim. Deceased was killed while fighting a fire in a national forest; negligence alleged. Enslow v. U.S., #914335-RSWL, 108 (133) L.A.D.J. {V&S} 6 (C.D.Cal. 1995). [1995 FP 131]
     Written agmt. providing for captain's demotion settled only his grievance and did not bar other legal remedies. Spiering v. City of Madison, 863 F.Supp. 1065 (D.S.D. 1994). {N/R}
     Illinois appellate court upholds a "waiver of liability" for a dangerous activity in which the plaintiff requested to participate. Waivers prevent suits for those types of injuries that are generally contemplated by the parties in light of anticipated risks. Waivers will be enforced by the courts, in the absence of fraud, wanton/wanton conduct, illegality, contrary public policy, disparity in the bargaining position of the parties or an impediment within the social relationship of the parties. Masciola v. Chicago Metro. Ski Council, 628 N.E.2d 1067, 257 Ill.App.3d 313 (1993). {N/R}
     Colo. appellate court rules than prosecutors in disciplinary hearings have absolute immunity from civil suit. Bannister v. Colorado Discip. Counsel, 856 P.2d 79 (Colo.App. 1993). [1994 FP 115-6]
     Honolulu jury awards $1,987,705 against the city for a two hour delay in ambulance arrival. Cooper v. City of Honolulu, 1st Cir.Ct. (Haw. 1992); FP Ref. #5476. [1993 FP 51]
     City was prevented by "judicial estoppel" from arguing a position to defend a damage suit which differs from the position it took in a disciplinary trial where the city prevailed. Czajowski v. City of Chicago, 810 F.Supp. 1428 (7th Cir. 1992). [1993 FP 148]
     Two sheriff's deputies recover $5.3 million against the county. Another deputy had supplied an inmate with a gun used against the plaintiffs. Paradinovich v. Milwaukee Co.; Parks v. Milwaukee Co., Milw. Sentinel (4/16/92). [1992 FP 100]
     Federal court in California holds that a city can be liable for prejudgment interest on civil rights damages awarded in a labor dispute. Golden State Transit Corp. v. City of Los Ang., 60 LW 2164 (C.D. Cal., 8/23/91).
     Oregon jury awards $400,000 damages to auto crash victim's estate and against the other driver's employer. Employer allowed its employee to work all night without a rest. Faverty [Frederic M.] v. McDonald's Corp., Multnomah Co. Cir Ct., L.A. Daily [Law] Journal, April 2, 1991.
     Supreme Court immunizes state officials and employees from federal civil rights suits under Section 1983. Will v. Mich. State Police, 109 S.Ct. 2304 (1989).
     County police settle a suit filed by a dentist who alleged that officers had sexual relations with his then wife. [Jay] Fleckner v. Co. of Suffolk, N.Y. U.S. Dist. Ct. (E.D.N.Y. 1990).
     Officer suspended for seven days for refusing to execute illegal warrants, awarded $10,000 compensatory and $20,000 in punitive damages. Angell v. Leslie, 650 F.Supp. 55 (D. W.V., 1986).
     City is liable for acts of fire chief and civil service board, even if they acted outside of their legal authority. Marsh v. City of Milton, #CA-84-039 & 041-043, 23 G.E.R.R. (BNA) 366 (Fla. P.E.R.C. 1985).
     One "who has gratuitously assumed to protect others against injury is under no obligation to continue that protection indefinitely." Cwik v. Forest Preserve Dist. (1985), 131 Ill.App.3d 1097, 477 N.E.2d 21, appeal denied (1985), 106 Ill. 2d 553.{N/R}
     Court enforces state law banning garnishment of public employee wages over an incident involving an emergency response. Harp v. Winkles, 335 S.E.2d 292 (Ga. 1985).
     Reinstated police officer gets back pay, legal fees and $50,000 punitive damages against chief and other officials. Thomas v. City of New Orleans, 687 F.2d 80 (5th Cir. 1982).
     Officer loses suit against chief for injuries suffered while working alone on night patrol in a high crime area. Kirkpatrick v. City of New Orleans, 405 So.2d 562 (La. App. 1982).
     Disciplinary finding of negligence on part of captain is not admissible in civil suit against city. Finding in Rogers v. Mun. Fire and Police Civil Serv. Bd., 357 So.2d 12 (La. App. 1978); held not admissible in American Employers Insurance Co. v. Honeycutt Furn. Co. et al., 390 So.2d 256 (La. App. 1980).
     U.S. Supreme Court holds that where the city council released defamatory information about the police chief, an at-will employee, who was summarily terminated, the city was liable for due process violations and has no immunity under Sec. 1983. Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 1980 U.S. Lexis 14. {N/R}
     $75,000 verdict for officer against police chief reversed; suit alleged injury to reputation and invasion of privacy following disciplinary investigation. Rosales v. City of Eloy, 593 P.2d 688 (Ariz. App. 1979).
     Fired cop gets settlement for alleged harassing surveillances and public disclosure of confidential file. Strickler v. Green, U.S. Dist. Ct. (E.D. Pa. 1980).
     Governmental immunity; application to demotions. City of Atlanta v. Fry, 251 S.E.2d 90 (Ga. App. 1978).
     Alaska jury awards employee $200,000 general and $200,001 punitive damages plus interest, costs and legal fees; officer falsely accused of racism and publicly condemned without hearing. Wayson v. City of Fairbanks, Alaska et al, Super. Ct. 4th Dist., #77-1581, 22 ATLA L. Rep. 222 (1979).
     Agreement to let employee resign and not to give unfavorable recommendations is enforceable; $100,000 jury verdict ensued. Case to be retried due to trial error. Nadeau v. Co. of Ramsey, 277 N.W.2d 520 (Minn. 1979).
     U.S. Supreme Court overturns municipal immunity in discharge case; good faith of city officials no longer a defense. Owen v. City of Independence, 100 S.Ct. 1398 (1980).
     Federal appeals court upholds right of subordinates to sue superior officers for recklessly exposing them to danger during training exercises. Jaffe v. U.S., 663 F.2d 1226 (3rd Cir. 1980), prior decis. at 592 F.2d 714.
     Michigan appellate court allows occupants to sue police and fire arson investigators for trespass. Antkiewica v. Motorists Mut. Insur., 283 N.W.2d 749 (Mich. App. 1979).
     Michigan upholds right of applicant to sue public agency for libel and slander; immunity not applicable. Butler v. Wayne Co. Sheriff's Dept.; 255 N.W.2d 7 (Mich. 1977).
     $30,000 award for interference with employment reversed; former officer could not hold city liable. Houser v. City of Redmond, 586 P.2d 482 (Wash. 1978).
     City not liable for injuries sustained by employee during training exercise. Berger v. City of Berkeley, 275 N.W.2d 2 (Mich. App. 1978).
     False fitness reports by superiors are privileged from libel suits; absolute immunity not dependent on a duty to file report. Gorst v. Gerguson, 431 F.Supp. 125 (W.D. Okla. 1977).
     New York City rules that fire buff is entitled to recover from city for injuries sustained while assisting fire fighters. Wolf v. City of N.Y., 365 N.Y.S.2d 205 (A.D. 1975).
     Members of fire and police commission immune from suit for discharge of employee if they acted in good faith. Reich v. City of Freeport, 388 F.Supp. 953 (N.D. Ill. 1974); Wood v. Strickland, 95 S.Ct. 992, affirming Strickland v. Inlow, 485 F.2d 186 (8th Cir. 1973).
     Note: For liability decisions outside of the employment area, consult other AELE libraries.
     «» FIRE SERVICE LIABILITY
     Mich. appeals court affirms $2,986,000 verdict against a city, awarded to property owners adjacent to an abandoned building that was set on fire by arsonists. The warehouse was a fire hazard and the failure to abate the nuisance by prompt demolition was negligent. Continental Paper v. City of Detroit, 521 N.W.2d 844 (Mich.App. 1994). {N/R}
     City is not liable for fire marshal's felonious act of setting fire to a business. Thorn v. City of Glendale, 28 Cal.App.4th 1379, 35 Cal.Rptr.2d 1 (Cal.App. 1994). {N/R}
     L.A. fire paramedics failed to notice brain injury; city agrees to $1.2 million settlement. Mestepey v. City of Los Angeles, as reported in the L.A. Herald Examiner (3/3/88, p. A3).
     Civilian who assisted firefighters receives $100,000 settlement from city for injuries sustained when he fell from a ladder. Sanders v. City of Cheyenne, U.S. Dist. Ct. #C87-10188, 30 ATLA L. Rep. 461 (D. Wyo. 1987).
     Firefighters privileged to use deadly force to apprehend fleeing arsonist; $336,000 wrongful death verdict reversed. Munoz v. Olin et al., 142 Cal.Rptr. 667 (App. 1977).
     Fire chief loses motion to dismiss in $6 million suit over death of pregnant woman denied ambulance service. Pettee v. Hulett, U.S. Dist. Ct. (N.D. Ill. 1975).
     Court refuses to dismiss suit against Chicago Fire Department over treatment by ambulance personnel; immunity statute sidestepped. Dunbar v. Reiser and Chicago Fire Dept., 325 N.E.2d 440 (Ill.App. 1975).
     Federal court refuses to dismiss civil rights action against Philadelphia fire commissioner; plaintiff alleged denial of medical and pension benefits in retaliation to a lawsuit he filed. Marvasi v. Shorty, 70 F.R.D. 14 (E.D. Pa. 1976).
     Iowa supreme court absolves fire dept. from liability for fire losses when firefighters withdrew from a trailer park that was outside the city limits and the operators of the park had failed to pay a subscription fee for fire protection. Canade Inc. v. Town of Blue Grass, 195 N.W.2d 734 (Iowa. 1972). {N/R}

    See also: Ambulance Services, Damages, Defamation, Emotional Distress, First Amendment Related; Injuries to Employees; Transfers; Wrongful Discharge.