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of articles online at www.aele.org/law from the April 2003

Note: This is the online version of the print edition that is mailed to subscribers. It only summarizes the featured articles found in the other three periodicals. The clickable links to actual court decisions (or arbitration awards) are in the three online periodicals, and are NOT duplicated in this summary.

Summaries from the April 2003

Assault and Battery: Physical

     Jury instructions on issue of officers' alleged use of excessive force against motorist were adequate when the jury was told that they should find for the defendants unless they found from all facts and circumstances as they appeared to the officers at the scene that no reasonable officer would have done what those officers did. These instructions properly told the jury to evaluate the use of force from the perspective of a reasonable officer on the scene and from an objective standard. The phrase "unless no reasonable officer" used in the instructions was merely the "double negative equivalent" of "a reasonable officer." Miller v. City of Nichols Hills Police Dept., No. 01-6128, 42 Fed. Appx. 212 (10th Cir. 2002).

Attorneys' Fees: For Plaintiff

     Federal government was liable for attorneys' fees of journalist requesting FBI documents relating to deceased civil rights activist when the government sought a protective order, failing to first consult with the requester and make a good faith attempt to resolve the discovery dispute before seeking intervention by the court. Campbell v. U.S. Dept. of Justice, 231 F. Supp. 2d 1 (D.D.C. 2002).

Defenses: Absolute Immunity

     State prosecutor was entitled to absolute immunity for allegedly telling an officer to delete exculpatory material from an arrest warrant application and resubmit it to the court, after the first attempt to obtain the arrest warrant was rejected. Sheehan v. Colangelo, #02-7736, 53 Fed. Appx. 584 (2nd Cir. 2002).

Defenses: Bifurcation of Claims

     Trial court did not abuse its discretion in bifurcating the trial of state law claims from federal civil rights claims. Landsman v. Village of Hancock, 745 N.Y.S.2d 258 (A.D. 2002).

Defenses: Qualified Immunity

     Federal appeals court did not have jurisdiction to consider an appeal of the trial court's denial of qualified immunity to a defendant arresting officer when there were disputed issues of material fact concerning the officer's actions in seeking a warrant for the plaintiff's arrest for obstruction of justice. Appellate review, before final judgment, of a denial of qualified immunity is only proper when the denial is based on a question of law, rather than of fact. Additionally, officer did not make an unqualified concession of the plaintiff's version of the facts for the purposes of the appeal. Ray v. Wolters, #00-2345, 30 Fed. Appx. 550 (6th Cir. 2002).

     Defendant police officer could not challenge, on appeal of an initial denial of qualified immunity, the trial court's determination that sufficient evidence existed from which a finder of fact could conclude that the plaintiff arrestee was fleeing and no longer posed a threat when the officer shot him. This was an attempt to challenge the "genuineness" of the factual disputes in the case, rather than their "materiality." A proper challenge on appeal would be one to their "materiality," i.e., contending that no violation of a clearly established federal right would be shown even if all of the plaintiff's factual allegations were true. Reyes v. City of Richmond, Tex., #01-20398, 287 F.3d 347 (5th Cir. 2002) .

Defenses: Release Agreements

     Release agreements which arrestees had signed in exchange for dropping of criminal charges were enforceable, barring their federal civil rights claims against arresting officers for false arrest and excessive force. Gonzalez v. Kokot, #02-1514, 314 F.3d 311 (7th Cir. 2002).

Dogs

     Federal appeals court upholds criminal conviction of officer for violating suspect's civil rights by allegedly releasing police dog to bite him without any warning while he had his hands up, was not resisting police orders, and had not made any sudden moves. Trial court did not abuse its discretion in admitting evidence of officer's alleged subsequent involvement in the misuse of police dogs, or in allowing the government to present rebuttal expert witness testimony that the officer's use of her dog in the immediate case was improper. U.S.A. v. Mohr, #01-5002, 318 F.3d 613 (4th Cir. 2003).

Emotional Distress

    Under District of Columbia law, a claim for intentional infliction of emotional distress could be based on officers' alleged unlawful entry into and search of arrestee's home without justification, killing of his pet dog inside the residence, and failure to secure the premises after his arrest, resulting in the loss of property alleged to have a value in excess of $6,000. Amons v. District of Columbia, 231 F. Supp. 2d 109 (D.D.C. 2002).

False Arrest/Imprisonment: No Warrant

     Federal appeals court upholds $1.75 million award to man arrested on serial rape charges following impermissibly suggestive photo arrays and inconclusive police-canine identification which only led officers to arrestee's building without singling out his apartment or him. Grant v. City of Long Beach, #01-56046, 315 F.3d 1081 (9th Cir. 2002).

     Participants in state authorized "needle exchange" program could not be targeted for arrest for possession of controlled substances based on drug residue remaining in a used needle or syringe. Police officers also did not have probable cause to arrest an intravenous drug user for criminally possessing a hypodermic instrument when it was clear that he was a participant in the program. Roe v. City of New York, 232 F. Supp. 2d 240 (S.D.N.Y. 2002). (impermissible targeting of members of needle exchange program for arrests); L.B. v. Town of Chester, 232 F. Supp. 2d 227 (S.D.N.Y. 2002). (lack of probable cause for arrest of member of needle exchange program for criminal possession of a hypodermic instrument).

     No liability for arresting and prosecuting man for housing code violation involving a badly fire damaged house "wide open to trespassers" when arrestee held himself out as the property owner when questioned, and did not even dispute the issue of ownership at his trial. Plaintiff was released only after being convicted and serving eleven days of his jail sentence, when it was finally determined that he was not the actual property owner. Gorcaj v. Medulla, #01-1288, 51 Fed. Appx. 158 (6th Cir. 2002).

     Arresting officer was not entitled to qualified immunity for arresting man for possession of stolen motorcycle or for depriving owner of use of motorcycle when the owner had not reported the motorcycle stolen and offered to show the officer papers proving ownership prior to the arrest. Daley v. Harbor, 234 F. Supp. 2d 27 (D. Mass. 2002).

Firearms Related: Accidental Use

     Officer acted in good faith in keeping his gun drawn while assisting another officer handcuff an arrestee following a high-speed chase, entitling him to official immunity under Texas state law for injuries arrestee suffered when the gun accidentally discharged. Telthorster v. Tennell, #01-0074, 92 S.W.3d 457 (Tex. 2002).

Firearms Related: Intentional Use

     No reasonable jury could find that a police officer acted objectively unreasonably in shooting an armed suspect who fired the first shot, steadily advanced on the officer, and refused to obey the officer's orders. Firing officer reasonably believed that he was in jeopardy and that a fellow officer was under attack. Plaintiff's admission, in his criminal case, that he acted recklessly was "damning" in his civil rights claim. No claim against municipality could be pursued under the circumstances. Jaques v. Town of Londonderry, #02-1872, 54 Fed. Appx. 14 (1st Cir. 2002).

     Disputed issues of fact as to whether or not the police officers reasonably believed that they saw a motorist point or fire a gun at them following a traffic stop precluded summary judgment of the basis of qualified immunity for the officers in a lawsuit over their shooting and killing of the motorist. Lee v. Hanna, #01-55403, 32 Fed. Appx. 937 (9th Cir. 2002).

First Amendment

     New York statute prohibiting the wearing of masks in public demonstrations, with the sole exception of "masquerade parties" or "entertainment" purposes, violated the First Amendment rights of Klan group. Federal trial court finds that wearing masks is protected by the right to anonymous speech, as well as the right to symbolic speech, and that the exception provided constituted an impermissible content-based restriction. Statute was also improperly "selectively" enforced. Church of Amer. Knights of Ku Klux Klan v. Kerik, 232 F. Supp. 2d 205 (S.D.N.Y. 2002).

     Municipal ordinance requiring a permit before distributing literature or making speeches in public parks was facially invalid under the First Amendment. It would curtail spontaneous speech and was not "narrowly tailored" to achieve a significant government interest. Diener v. Reed, 232 F. Supp. 2d 362 (M.D. Pa. 2002).

Freedom of Information

     Police department records which primarily consisted of statistical information concerning the history of law enforcement efforts at certain nightclubs in a number of precincts in the city over a number of months two years previously, were not exempt from disclosure under the New York Freedom Of Information Law, McKinney's Public Officers' Law Sec. 84 et seq These documents were not, for the most part, relevant to any "current or future investigation or prosecution of one of the named nightclubs, other than to provide historical context." Court does hold that any references in the documents to "prospective police activity" should be removed. Council of Regulated Adult Liquor Licenses v. City of N.Y. Police Dept., 751 N.Y.S.2d 438 (A.D. 1st Dist. 2002).

     Proposed Department of Justice settlement agreement with city concerning investigation of its police department was subject to disclosure under Ohio State Public Records Act, R.C. Sec. 149.43 and was not exempt as a "trial preparation record," or a "confidential law enforcement investigatory record." The document was also not protected against disclosure under any exemption of the federal FOIA, 5 U.S.C. Sec. 551(1), 552(f), since the Freedom of Information Act does not apply to non-federal agencies or officers, and therefore did not apply to public records of the proposed settlement kept by the city. Since there was no reasonable basis for the claimed exemptions, the requesting newspaper was entitled to an award of attorneys' fees. State ex rel. Cincinnati Enquirer v. Dupuis, #2002-1038, 781 N.E.2d 163 (Ohio 2002).

Interrogation

     Federal appeals court overturns injunction requiring that police notify cooperating witnesses being interrogated that a lawyer, purporting to represent them, has arrived at the station. Court rejects ruling which was purportedly based on the First Amendment rights of the lawyer to associate with his client. First Defense Legal Aid v. City of Chicago, #02-3376, 319 F. 3d. 967 (7th Cir. 2003).

Malicious Prosecution

     Department of Motor Vehicles investigator was entitled to qualified immunity in federal civil rights malicious prosecution claim since the investigator informed the prosecutor in a timely fashion that the arrestee was innocent of the charge of possessing a "forged instrument" when he tried to exchange a valid U.S. Virgin Islands driver's license for a New York license. Record of Virgin Islands license's issuance could not be found at the time of the arrest, but showed up later, so there was probable cause for the arrest. Kinzer v. Jackson, #01-0157, 316 F.3d 139 (2nd Cir. 2003).

     A reasonable officer could have believed that there was probable cause to prosecute an attorney for concealing evidence when he advised a client being investigated for involvement in a hit and run accident that he could move his vehicle as long as evidence was preserved. Officers were entitled to qualified immunity from attorney's malicious prosecution claims. Tittle v. Raines, 231 F. Supp. 2d 537 (N.D. Tex. 2002).

Miscellaneous: Towing

Federal appeals court upholds denial of permit to operate tow truck under a municipal regulation making persons with convictions of specified criminal offenses, documented mental illnesses or unsafe driving records ineligible for a permit. Cole v. City of Dallas, #01-10194, 314 F.3d 730 (5th Cir. 2002).

Off-Duty/Color of Law

     Off-duty police officer acted under color of law in allegedly falsely arresting at gunpoint and maliciously prosecuting trucker who claimed he was merely attempting to use a telephone on an emergency basis to provide notification of a highway hazard posed by his broken down vehicle. Defect in jury instructions, however, required new trial, setting aside $622,000 award in favor of plaintiff. Jocks v. Tavernier, #00-7735, 316 F.3d 128 (2nd Cir. 2003).

     An assistant police chief did not act "under color of state law" for purposes of a federal civil rights lawsuit when he filled out a form requesting an arrest warrant for the purchasers of his boat, asserting that they had committed embezzlement by failing to make required monthly payments. In doing so he acted in a purely personal matter, and his actions were the "functional equivalent" of a private citizen making a call for police assistance. Sanchez v. Crump, 184 F. Supp. 2d 649 (E.D. Mich. 2002).

Police Plaintiffs: Defamation

     A newspaper article which was a satire or parody that, if believed, conveyed a false or defamatory impression was not protected under the First Amendment as merely an opinion or rhetorical hyperbole, but could be the basis for a defamation claim if a reasonable reader could have believed that it was making statements of fact. District Attorney and judge could pursue claim against newspaper for publishing an article with a made up story suggesting that they might prosecute and try a first grader for writing a book report about a children's story since it contained an "implication of violence." New Times, Inc. v. Isaacks, No. 02-01-023-CV, 91 S.W.3d 844 (Tex. App. Ft. Worth, 2002).

Police Plaintiffs: Premises Liability

     Building owner was not liable to deputy sheriff for dog bite suffered while attempting to serve process on a tenant in an eviction case. Landlord was not reasonably on notice of the presence of the dog on the building premises simply because of dog droppings in the yard. Landlord was also entitled to protection under the one-bite rule even if they knew of the dog's presence, when they had no knowledge of this dog's dangerous propensities. Montier v. Silver Lake I, L.P., #2001-514, 813 A.2d 978 (RI 2003).

     City was not entitled to summary judgment in lawsuit for personal injuries brought by police officer who was injured in a slip and fall in a building it owned. There were genuine issues of fact as to whether the city had notice of the alleged defective condition in the building which caused the fall. Malanga v. City of New York, 752 N.Y.S.2d 391 (A.D. 2002).

Procedural: Evidence

     Admission into evidence of a videotape showing the plaintiff conducting her daily activities during a trial of her claim that she had suffered serious injuries from the excessive use of force by a police officer was not improper and did not constitute "unfair surprise" when the plaintiff's attorney was furnished with a copy and given a chance to view it prior to its admission. Meiselman v. Byrom, 207 F. Supp. 2d 40 (E.D.N.Y. 2002).

     Admission into evidence of an audiotape of an arrestee's conversation with a police dispatcher was not an abuse of discretion in a federal civil rights case in which the arrestee claimed that she had been improperly arrested for public intoxication. The audiotape's reproduction of the arrestee's "hysterical conversation" with the dispatcher was "no more prejudicial" than the arresting officer's account of "her drunken behavior," so that the court could not say that its admission was so prejudicial that it violated the plaintiff's "substantial rights." Diamond v. Howd, #00-6323, 288 F.3d 932 (6th Cir. 2002).

Property

     Federal civil rights claims against Secret Service agent for destruction of property (residence doors) during execution of a federal search warrant were properly dismissed when there were post deprivation remedies available which the plaintiff had not shown were inadequate. Stiger v. O'Nell, #02-5774, 53 Fed. Appx. 738 (6th Cir. 2002).

Public Protection: Crime Victims

     Nebraska Supreme Court rejects argument by mother of cross-dressing woman that $98,223 in damages for failure of county sheriff to protect her daughter against murder by two men she accused of rape was inadequate. Court notes that mother's relationship with her daughter was "strained." Brandon v. County of Richardson, #S-01-1158, 653 N.W.2d 829 (Neb. 2002).

     Police officers were not individually liable and were entitled to qualified immunity for allegedly increasing a shooting victim's risk of death by transporting him to a hospital in a police vehicle rather than waiting for an ambulance. Officers did not create the danger to the shooting victim or act with deliberate indifference for his safety. City was also not responsible, in the absence of a showing that it had failed to properly train the officers or had a policy which deprived the shooting victim of his rights. Hansberry v. City of Philadelphia, 232 F. Supp. 2d 404 (E.D. Pa. 2002).

Public Protection: Disturbed/Suicidal Persons

     Officers were properly granted summary judgment in lawsuit brought by suicidal man armed with knives who threatened his wife and officers and then was subdued by shooting him with "beanbag" rounds. Officers' use of force was objectively reasonable under the circumstances, and appeals court expresses agreement with trial judge that plaintiff should have "thanked" rather than sued the officers. Bell v. Irwin, #02-2262, 2003 U.S. App. Lexis 3415 (7th Cir.).

Racial/National Origin Discrimination

     State park visitors of Hispanic origin stated a viable claim that park officials enforced the regulations prohibiting swimming after hours against them on the basis of race, precluding summary judgment for officials in the lawsuit. Visitor was not precluded from pursuing her claim on the basis that she had pled guilty and paid a fine for swimming after hours. Carrasca v. Pomeroy, #02-1127, 313 F.3d 828 (3rd Cir. 2002).

Search and Seizure: Vehicle

     California officers' initial stop and investigation of vehicle without license plates was reasonable, but there was a jury question as to whether they acted improperly in engaging in a prolonged two hour detention of the driver and her passenger, and whether they improperly engaged in a warrantless search of the two occupants' home during that time when all that was consented to may have been an officer accompanying the driver into the home to retrieve the passenger's California identification card. Intermediate appeals court reinstates lawsuit by vehicle occupants.. Venegas v. County of Los Angeles, #B148398, 128 Cal. Rptr. 2d 627 (Cal. App. 2 Dist. 2002).

     Washington State Patrol exceeded the authority granted in a state statute, RCWA 46.55.113, in adopting a regulation that requires the impoundment of every vehicle driven by a driver arrested for having a suspended or revoked license. Statute only authorized impounding of vehicles at the discretion of the officer. In Re Impoundment of Chevrolet Truck, #71848-2, 60 P.2d 53 (Wash. 2002).

Associating with Known Criminals

     Arbitrator rejects the defense that a terminated jail officer was only a high school graduate and could not be expected to understand a rule prohibiting association with current and ex-inmates. A disparate punishment claim also was overruled. El Paso County Sheriff's Dept. and Individual Grievant, 117 LA (BNA) 1304, AAA Case #70-390-00110-01 (Moore, 2002).

Collective Bargaining - In General

     Florida Supreme Court holds that sheriff's deputies are entitled to form unions and bargaining for improved pay and benefits. The justices overturned a 1978 holding that deputy sheriffs are not public employees. Coastal Fla. Police Benevolent Assn. v. Williams, #SC00-1860, 2003 Fla. Lexis 105 (Fla. 2003).

Collective Bargaining - Duty to Bargain

     Pennsylvania Supreme Court holds that the State Police did not commit an "unfair labor practice" when it unilaterally ceased to provide pretermination hearings for probationary troopers, despite a past practice of holding hearings. Because the State Police has the discretion to summarily dismiss probationary troopers, there is no rational relationship between the hearings and the terms and conditions of employment. Penn. State Police v. Penn. Labor Relations Bd. ex rel. Penn. State Troopers Assn., #162 MAP 2001, 810 A.2d 1240, 2002 Pa. Lexis 2427 (Pa. 2002).

     A Los Angeles County Superior Court has refused to issue a restraining order preventing the sheriff from implementing a new sexual harassment policy without first engaging the union under the state's "meet and confer" bargaining law. The union claimed the revised policy widens the conduct that could result in disciplinary action and changes how harassment complaints will be investigated. Assn. for L.A. Deputy Sheriffs v. L.A. Co., #BC-288744, 41 (1996) G.E.R.R. (BNA) 159 (Cal.Super. 1/17/03).

Criminal Liability

     Former St. Tammany Parish, Louisiana, deputy sheriff who failed to serve approximately 300 legal processes, is charged with official malfeasance and 24 counts of injuring public records. State of Louisiana v. Meyers, (22nd Jud. Dist. Ct. 2003).

     U.S. Capitol Police officer who was convicted for creating an anthrax "joke," leaving some powdered sweetener and a note on a desk, has been sentenced to two years of probation and 200 hours of community service. He also faces termination proceedings. U.S. v. Pickett, # 02-CR-14 (Sentencing, D.D.C. 2003).

Defamation

     Prison warden could not sue a Connecticut newspaper in Virginia for posting allegedly defamatory matter on its website. "A court in Virginia cannot constitutionally exercise jurisdiction over the Connecticut-based newspaper defendants because they did not manifest an intent to aim their websites or the posted articles at a Virginia audience." Young v. New Haven Advocate, #01-2340, 2002 U.S. App. Lexis 25535 (4th Cir. amended 2003).

Disability Rights and Benefits

     The California Public Employees Retirement System will pay $250 million to settle charges it discriminated on the basis of age against public safety officers who took disability retirements. The Plaintiffs were police officers and firefighters whose disability pensions were slashed because they started their careers at 31 or older. Arnett v. California Pub. Employees' Ret. Sys., #95-03022, 41 (1995) G.E.R.R. (BNA) 127, settlement approved (N.D. Cal. 2003).

Disciplinary Hearings - Untenured

     A city manager had a liberty interest in clearing his name and received a sufficient notice and hearing. His defamation claim fails because the statements were privileged opinions, expressed during a political dispute. Hammer v. City of Osage Beach, #01-3206, 2003 U.S. App. Lexis 1656 (2003).

Disciplinary Hearings - Loudermill Rights

     Arbitrator refuses to order management to produce witnesses, and to subject them to cross-examination, at a pretrial Loudermill meeting. Cuyahoga Co. Sheriff and Ohio PBA, 117 LA (BNA) 1438 (Skulina, 2002).

Disciplinary Offenses

     New governor of Illinois, who campaigned on a platform of restoring honesty to state government, has issued three executive orders creating an Office of Inspector General, mandating ethics training, and strengthening whistleblower laws. Illinois Executive Orders No. 3-2003, 4-2003 and 5-2003 (Jan. 23, 2003).

     Arbitrator holds that a school system had "just cause" to discipline a teacher who returned marijuana to one of his students, despite his belief that it was not his job to confiscate marijuana or to enforce the state's drug laws. Grand Rapids Public Schools and G.R. Educ. Assn., 117 LA (BNA) 1362 (Brodsky, 2002).

Disciplinary Punishment

     Appeals court upholds the demotion of a correctional sergeant for sexual harassment of two women officers. Lewis v. N.C. Dept. of Correction, #COA01-1386, 570 S.E.2d 231, 2002 N.C. App. Lexis 1168 (N.C.App. 2002).

Discovery, Publicity and Media Rights

     City of New York ordered to release hundreds of audio and written Fire Dept. records related to the 9-11 response at the World Trade Center. The state trial court exempted internal documents that could be used to create and amend policies, but noted that firefighters and communications operators are not entitled to the same expectations of privacy as citizens. New York Times Co. v. City of N.Y. Fire Dept., #110753/0, N.Y. Co. Supreme Ct., N.Y (Misc. 2003).

Disciplinary Punishment

     Federal court rejects a retaliation suit brought by a state trooper who had been fired two weeks after he sued the agency for FLSA overtime violations. The court found that the trooper was lawfully dismissed for not returning his patrol vehicle, improperly claiming overtime pay, and refusing to produce a report about possible overtime abuse. Hill v. Manning, 2002 U.S. Dist. Lexis 24672 (M.D. Ala. 2002).

Employee Harassment

     Eight Circuit upholds the right of three deputies to sue the sheriff if they can prove he had threatened them with a loaded firearm in anger, but there is no federal liability if a jury decides it was only stupid horseplay. His repeated, sexually-suggestive touching of male officers was not sexual harassment, but his touching of a woman deputy's breast was actionable. Hawkins v. Holloway, #01-3336, 2003 U.S. App. Lexis 639 (8th Cir. 2003).

Examination Techniques

     Arbitrator holds that a person assigned to administer the practical skills portion of a firefighters' promotional exam does not have to be certified in those skills, and need not have taken the exam himself. Moreover, if some portion of an exam is eliminated before or after testing because of unfairness, the exam is still valid because no candidate is at a disadvantage. Candidates must be informed, however, when standards change if they are to be incorporated into the testing process. City of Fort Myers and the SW. Fla. Prof. Firefighters L-1826, 117 LA (BNA) 1441 (Howell, 2002).

Free Speech

     Fourth Circuit strikes down a police chief's order to an officer that he refrain from criticizing him and his policies. Mansoor v. Trank, #02-1277, 2003 U.S. App. Lexis 1846 (4th Cir. 2003).

Handicap Discrimination - Regarded as Disabled

     A duty physician with hepatitis C, who repeatedly missed work, was not "regarded as ... impaired" within the meaning of the ADA. Gowesky v. Singing River Hosp., #60283, 2003 U.S. App. Lexis 2054 (5th Cir. 2003).

     Second Circuit upholds an ADA claim by a police officer that was passed over for sergeant because he had suffered an epileptic seizure. Treglia v. Town of Manlius, #01-9350, 313 F.3d 713, 2002 U.S. App. Lexis 26120 (2d Cir. 2002).

Holiday and Premium Pay

     Arbitrator holds that a village did not violate the bargaining agreement when it paid only detectives, who normally do not work weekends, holiday pay for working on the Friday before a Saturday holiday, even though language of the contract was not precise. The union had not attempted to enforce similar payments for patrol officers for the last 16 years. Vil. of Romeoville and Combined Counties Police Assn., 117 LA (BNA) 1392 (Goldstein, 2002).

Pay Disputes - Overtime Claims

     DEA officer was not entitled to overtime pay where the hours were not officially ordered or approved. Crowley v. U.S., #94-711C, 53 Fed. Cl. 737, 2002 U.S. Claims Lexis 260 (Ct.Cl. 2002).

Political Activity/Patronage Employment

     Sixth Circuit overturns an injunction against a mayor for initiating transfers or demotions or interfering with promotions or compensation of firefighters because of their political beliefs, associations, or a desire to remain neutral in political matters. The injunction was overly broad, was unnecessary to provide the plaintiffs the relief to which they are entitled, and was not based upon a showing of likely future irreparable harm. Sharpe v. Cureton, #00-5805, 2003 U.S. App. Lexis 2643, 2003 FED App. 0050P (6th Cir.).

Privacy Rights

     Arbitrator finds that management violated an injured employee's rights under the Privacy Act of 1974 when it obtained her medical records directly from medical university and two physicians; federal regulations require agencies to seek an employee's cooperation in procuring necessary documents. Dept. of Veterans Affairs and N.A.G.E, 117 LA (BNA) 1313 (Singer, 2002).

Sick Leave & Abuse

     Arbitrator concludes that an employee who had vasectomy was not entitled to sick leave under the bargaining agreement, which allowed paid absences because of illness; illness means a condition caused by "disease, malady or sickness." Communications Wkrs. of Amer. and Office & Prof. Emplees. Intern. L-2, 117 LA (BNA) 1377 (Hockenberry, 2002).

Transfers - Disciplinary or Punitive

     Federal court in D.C. refuses to order the prosecutor to remove an officer's name from a blacklist -- thereby preventing him from making arrests, testifying in court or working undercover assignments. The due process clause and civil service laws do not protect a particular job assignment, not accompanied by a loss of pay. Humberson v. U.S. Attorney's Office, #02-2179, 2003 U.S. Dist. Lexis 242 (D.D.C. 2003).

     Seventh Circuit affirms the dismissal of a retaliation lawsuit brought by DEA instructors that were summarily transferred after they publicly demeaned women, Attorney General Reno and First Lady Hillary Clinton. The DEA had a duty to thoroughly investigate the harassment claims and to take remedial action. Flanagan v. Ashcroft, #00-2766, 2003 U.S. App. Lexis 844 (7th Cir. 2003).

Union and Associational Activity

     Arbitrator rules that the U.S. Border Patrol could not require a union local president to submit a written report concerning when he plans to be out of town on union business, including the purpose of meeting, with whom he is meeting, and what the meeting is about. The requirement was not authorized under the bargaining agreement and is overly intrusive. I.N.S., Border Patrol, El Paso and Natl. Border Patrol Council, AFGE L-1929, 117 LA (BNA) 1252 (Massey, 2002).

Whistleblower Requirements and Protection

     State narcotics agents awarded $1.5 million for retaliatory action after they exposed a money laundering operation benefiting a CIA-favored Caribbean politician. McLaughlin v. Fisher, #00-CV-521 (M.D. Pa. 2003).

     First Circuit holds that a police officer that was transferred to a position he had previously requested after complaining about departmental corruption was unable to prove he was the victim of retaliation for whistleblowing. Dirrane v. Brookline Police Dept., #01-2523, 315 F.3d 65 (1st Cir. 2002).

Vehicle Related

     Arbitrator sustains a one-day suspension for a police officer that collided with another vehicle while responding to a burglary call. Officer either failed to activate, or waited too long to enable the Opticom priority control traffic system, and did not turn on his lights and siren until at the intersection. City of Broken Arrow and FOP L-170,117 LA (BNA) 1454 (Goodman, 2002).

Administrative Liability

     Prisoner failed to state a claim against the Michigan Dept. of Corrections Director for interference with his right of access to the courts or for the loss of his property, when he failed to show that the director had any direct involvement in these alleged deprivations. The defendant's "supervisory capacity does not make him liable for the alleged deprivations by an unspecified prison official." Sarr v. Martin, #02-1639, 53 Fed. Appx. 760 (6th Cir. 2002).

AIDS Related

     Federal appeals court upholds verdict for prison officials in lawsuit by HIV-positive prisoner who missed his medication for two periods of time. For Eighth Amendment purposes, the jury was free to consider the absence of concrete serious injuries resulting from the lack of medication as a relevant factor in whether a constitutional violation occurred. Smith v. Carpenter, #01-0294, 316 F.3d 178 (2nd Cir. 2003).

Chemical Agents

     Correctional officer's use of mace in the course of quelling disturbance among death row inmates was not malicious or sadistic. Genuine issues remained as to whether commander of special response team failed to adequately control and instruct subordinates in suppressing confrontational prisoners or allowed the excessive use of "lethal levels" of gas and other chemical agents before ordering entry into death row unit. Death row prisoners could not pursue claims against unidentified officers concerning the use of excessive force. Combs v. Wilkinson, #00-4270, 315 F.3d 548 (6th Cir. 2002).

Defenses: Procedural

     County prison officials whose lawyer did not file a response to inmate's claims concerning alleged deprivation of his medication were entitled to set aside the default against them when the prisoner did not show that doing so would result in any prejudice, or that the lawyer's failure was willful or in bad faith. The lawyer did act to set aside the default within seven days and the defendant officials appeared to have asserted meritorious affirmative defenses. Jackson v. Delaware County, 211 F.R.D. 282 (E.D. Pa. 2002).

First Amendment

     Prison officials failed to meet their burden of showing that they would have imposed the same punishment on a prisoner regardless of their alleged retaliation against him for exercising his constitutionally protected right to use the prison grievance system to complain about alleged staff racism. Gayle v. Gonyea, No. 01-0218, 313 F.3d 677 (2nd Cir. 2002).

Inmate Funds

     Colorado Restitution Act, C.R.S.A. Sec. 16-18.5-106, allowed state correctional officials to withhold funds from prisoner's account to pay victim compensation costs, victim assistance surcharges imposed as part of sentence for sexual assault, and court costs, even though the sentence was imposed before the effective date of the statute, since it stated that it applied to all "delinquencies of orders" existing on or after the effective date. Court finds no ex post factor violation. People of the State of Colorado v. Lowe, #01CA1876, 60 P.3d 753 (Colo. App. 2002).

Mail

     Pennsylvania State Department of Corrections policy which barred inmate receipt of incoming publications found by a committee of employees to contain obscene materials did not violate prisoners' rights under free speech guarantees of the Pennsylvania state Constitution, Article 1, sec. 7, since there is no constitutional protection for obscene materials. Payne v. Com. Dept. of Corrections, 813 A.2d 918 (Pa. Cmwlth. 2002).

Medical Care

    Inmate who contracted hepatitis C in prison's segregation unit did not show that state prison officials were deliberately indifferent to his medical needs. Their directive on addressing hepatitis C did not suggest denying treatment, and the plaintiff was, in fact, treated for the disease. Additionally, there was no evidence that those who wrote the directive were aware of the presence of the human waste in the unit from which the plaintiff claimed he had contracted the illness. Outlaw v. Ridley-Turner, #02-2545, 54 Fed. Appx. 229 (7th Cir. 2002).

Prison Conditions: General

     Alleged confinement of prisoner to a cell with another inmate for 23-24 hours a day, without access to work, educational, vocational, or rehabilitation programs did not violate the Eighth Amendment prohibition against cruel and unusual punishment, even if he had not committed disciplinary infractions. Rhode Island officials, however, could potentially be liable for deliberate indifference to the alleged risk to the prisoner from threats of harm by Virginia prison guards. Figueroa v. Dinitto, #02-1428, 52 Fed. Appx. 522 (1st Cir. 2002).

Prison Litigation Reform Act -- Attorneys' Fees

     A state training school for juveniles constituted a "correctional facility" under provisions of the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(d)(1)(A), limiting the awards of attorneys' fees in cases challenging prison conditions of confinement to those directly and reasonably incurred in "proving an actual violation" of protected rights. Class of juvenile inmates was not a "prevailing party" entitled to $376,637.48 award of attorneys' fees and costs under 42 U.S.C. Sec. 1988 when the court order approving a settlement of the claims incorporated none of the specific terms and conditions agreed upon by the parties. Christina A. v. Bloomberg, #01-3698, 315 F. 3d 990 (8th Cir. 2003).

Prison Litigation Reform Act: Exhaustion of Remedies

     Federal appeals court rules that prisoner pursuing claims against Louisiana correctional officials and employees for inadequacies in his medical treatment had to exhaust available administrative remedies, despite recent decision by the Louisiana Supreme Court finding the state's prison grievance system unconstitutional in part, since that system nevertheless remained in place. Ferrington v. Louisiana Dept. of Corrections, #02-30256, 315 F.3d 529 (5th Cir. 2002).

     Federal prisoner's civil rights claims concerning alleged confiscation of his wheelchair and destruction of his leg braces, along with discontinuation of his physical therapy following transfer to a new facility, were properly dismissed for failure to exhaust available administrative remedies. Prisoner submitted requests for administrative remedies to warden and then sent new requests to Regional Director instead of submitting appeals to the Regional Director, and no appeals were ever made to the Director of National Inmate Appeals. Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2401(b) claims not filed within 6 months of receiving notice of administrative agency denial were time barred. Smith v. U.S., #02-1172, 53 Fed. Appx. 514 (10th Cir. 2002).

     Prisoner who bypassed the first two levels of administrative review of his grievances concerning conditions of confinement and declined to submit to their review after the regional prison official at the third level returned his complaint failed to exhaust available administrative remedies as required by 42 U.S.C. Sec. 1997e(a) of the Prison Litigation Reform Act. The fact that the prisoner believed that pursuing his grievances at the local level would have been futile did not alter the result. Jeanes v. U.S. Depart. of Justice, 231 F. Supp. 2d 48 (D.D.C. 2002).

Prison Litigation Reform Act -- Filing Fees

     A prisoner who was allowed under the Prison Litigation Reform Act, (PLRA), 28 U.S.C. Sec. 1915(a)(1), (b)(1,2) to make installment payments on litigation filing fees had no obligation to pay the remaining balance of the fee upon his release from prison. The released prisoners' obligations, if any, to pay filing fees would be determined by the general legal rules about proceeding as a pauper, not the special terms imposed on prisoners under the PLRA. DeBlasio v. Gilmore, #01-7025, 315 F.3d 396 (4th Cir. 2003).

Prison Litigation Reform Act -- Similar State Laws

     Sections of the Pennsylvania state Prison Litigation Reform Act, 42 Pa. C.S.A. Sec. 6602(a-c) which absolutely protected inmates from litigating without paying a filing fee was an invalid legislative infringement of the state Supreme Court's exclusive right to prescribe rules of practice and procedure for the courts. Court upholds, however, Sec. 6605(a) requiring that findings of fact be made before entering injunctive orders in prison conditions litigation. Payne v. Com. Dept. of Corrections, 813 A.2d 918 (Pa. Cmwlth. 2002).

Prison Litigation Reform Act -- "Three Strikes" Rule

     Provisions of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g), prohibiting prisoners with three "strikes" (three lawsuits previously dismissed as frivolous or failing to state a cause of action) from proceeding as a pauper with further litigation unless a prisoner is at imminent risk of serious harm, was not "jurisdictional" in nature, but rather required the payment of filing fees before the court can review the merits of the "three-strikes" prisoner's claims. Further, the appeals court had "some discretion" to hear an appeal without the payment of the fees. In this case, however, the court would dismiss the prisoner's complaint for failure to prosecute if he did not pay the filing fees. Dubic v. Johnson, #01-5122, 314 F.3d 1205 (10th Cir. 2003).

     Prisoner who had filed three previous lawsuits dismissed as frivolous could not pursue additional litigation as a pauper, but instead had to pay the required filing fee before proceeding with his lawsuit claiming that his rights were violated when a correctional officer asked him, in front of other prisoners, to supply the names of inmates engaged in selling drugs at the prison. Butler v. U.S., #01-6447, 53 Fed. Appx. 748 (6th Cir. 2002).

Prison Rules & Regulations

     New York prison's disciplinary rule prohibiting inmates from physically or verbally obstructing or harassing prison employees was not unconstitutionally vague, since a reasonable person would conclude that the prisoner's action in throwing a liquid substance on a corrections officer, even if it was only water, was prohibited. Mitchell v. Fischer, 752 N.Y.S.2d 97 (A.D. 2002).

Prisoner Assault: By Inmates

     Past prison officials failed to protect inmates from violence by other prisoners, creating an excessive risk to prisoner safety, as demonstrated by evidence of inadequate supervision and training of subordinates in how to investigate and abate dangerous conditions, and failing to discipline "malfeasant" employees. While successor officials instituted new policies, this did not make the prisoners' claims for injunctive and declaratory relief moot. Skinner v. Uphoff, 234 F. Supp. 2d 1208 (D. Wyoming 2002).

     Plaintiff prisoner did not show that officials were deliberately indifferent to his safety, since they did place him in administrative segregation in order to protect him from possible assault by other prisoners seeking to harm him because he had been incarcerated for sexual offenses. Additionally, the attack on him was carried out by a prisoner who was under escort and in restraints at the time, also indicating an effort to protect the plaintiff's safety. Carter v. Padilla, No. 02-2196, 54 Fed. Appx. 292 (10th Cir. 2002).

Prisoner Assault: By Officer

     Even if officer's actions in punching a handcuffed prisoner could be considered "inappropriate," federal appeals court states, his alleged single punch to the prisoner's shoulder to avoid being spit on was a minimal use of physical force which did not violate the prisoner's Eighth Amendment rights. Reyes v. Chinnici, #01-2142, 54 Fed. Appx. 44 (3rd Cir. 2002).

Prisoner Death/Injury

     Prisoners' claims that they had been injured by exposure to lead and asbestos while on a prison work detail involved a "continuing" harm, and the prisoners adequately complied with a state law notice of claim requirement when they provided notice within six months of the date that they discovered their exposure to the hazard, even if it first took place years earlier. City of Forsyth v. Bell, No. A02A2069, 574 S.E.2d 331 (Ga. App. 2002).

     Prisoner who claimed that a correction officer kicked the bottom of his chair, causing him to fall and be injured did not succeed in showing negligence required to establish liability, especially since prisoner was leaning back in the chair with the front legs 16-18 inches off the ground before he fell. Sturgill v. Ohio Dept. of Rehabilitation and Correction, #2001-08595, 782 N.E.2d 169 (Ohio Ct. Claims 2002).

     Utah inmate's slip and fall on a soapy shower floor in county jail, resulting in injuries, did not demonstrate the kind of excessive risk or substantial deprivation of the minimum civilized measure of life's necessities so as to constitute cruel and unusual punishment under the Eighth Amendment. Flandro v. Salt Lake County Jail, #01-4168, 53 Fed. Appx. 499 (10th Cir. 2002).

Prisoner Discipline

     Disciplinary determination against a prisoner which occurred 15 days after the writing of an inmate misbehavior report was not untimely under a New York administrative regulation when the 14th day after the report was written fell on a Sunday, so that the grant of an extension of time on the 15th day was ok. Faison v. Goord, 751 N.Y.S. 2d 224 (A.D. 2002).

Prisoner Suicide

     Federal jury awards $1.75 million to the family of county jail detainee who hung himself after telling jail medical workers that he was suicidal. Jury award imposes liability on company that contracted with county to provide medical services at facility, as well as against social worker. County settled claims against it for $60,000 prior to trial. Woodward v. Correctional Medical Services, No. 00C6010, U.S. District Ct. N.D. Ill., Feb. 24, 2003, reported in Chicago Tribune, Sec. 2, page 3 (Feb. 25, 2003) and Chicago Daily Law Bulletin, p. 3 (Feb. 25, 2003).

     The fact that a city's policy on monitoring suicidal pre-trial detainees allowed the clerk doing so to perform other duties at the same time did not, by itself, demonstrate deliberate indifference to the risk of harm, nor did the fact that the video equipment used for monitoring in this particular instance turned out to be defective. Serafin v. City of Johnstown, #02-1281, 53 Fed. Appx. 211 (3rd Cir. 2002).

Prisoner Transfer

     Prisoner did not have a constitutionally protected liberty interest in being housed in a particular facility, and therefore could not pursue a federal civil rights claim over his transfer to a high security prison and placement in administrative confinement there, even if this placement arguably violated state law. Moore v. Litscher, #02-1461, 522 Fed. Appx. 861 (7th Cir. 2002).

Religion

     Federal appeals court rejects correctional officials' multiple constitutional attacks on federal statute establishing restrictive test for the imposition of burdens on prisoner religious practices, holding that Congress did not exceed its powers under the spending clause of the Constitution, or violate the establishment of religion clause of the First Amendment, the rights of the states under the Tenth Amendment, the immunity of the states under the Eleventh Amendment, or the doctrine of separation of powers. Mayweathers v. Newland, #0-16505, 314 F.3d 1062 (9th Cir. 2002).

     Prison officials were not shown to have any knowledge that a non-prisoner was a Nation of Islam prisoner's spiritual advisor, entitling them to qualified immunity over the claim that they violated federal civil rights by preventing him and the prisoner from communicating. Proctor v. Toney, #02-2788, 53 Fed. Appx. 793 (8th Cir. 2002).

     Muslim prisoner's exclusion for two months from group religious services did not violate his First Amendment rights when the prisoner and chaplain had a disagreement about religious doctrines and the only other alternative to his exclusion would have been providing more security to ensure order at services. Plaintiff prisoner had alternative means of exercising his religious beliefs during the period in question, including individual prayer and study of religious literature. Allah v. Al-Hafeez, 208 F. Supp. 2d 520 (E.D.Pa. 2002).

Sexual Offender Programs

     Requiring a prisoner to answer questions about particular past sexual offenses which he might still be prosecuted for would violate his Fifth Amendment right to be free from compelled self-incrimination, and he could not be denied good time and work credits for refusal to answer such questions in the course of a sex offenders' treatment program, but he also could not avoid participating in and cooperating with an otherwise non-incriminating treatment program merely because he asserted this privilege to answering some questions. Bender v. New Jersey Dept. of Corrections, 812 A.2d 1154 (N.J. Super. A.D. 2003).

     The withholding of a prisoner's good time credits on the basis of his refusal to participate in a sex offender program did not violate his rights despite the fact that the crime he was convicted of was not one involving sexual misconduct. An unchallenged pre-sentence report showed that he had, in fact, performed sexual acts with two children, and the burglary he was convicted of involved the residence of the children he was accused of molesting. Boster v. Goord, 752 N.Y.S.2d 403 (A.D. 2002).

Smoking

     Delaware state prison officials were not entitled to qualified immunity from claims that inmate's Eighth Amendment rights were violated by exposure to environmental tobacco smoke that created current serious medical needs as well as posing an unreasonable risk of future harm. The right not to be exposed to such risks was "clearly established." Atkinson v. Taylor, #01-3565, 316 F.3d 2257 (3rd Cir. 2003).

     Prisoner's claim for injunctive relief against unreasonable exposure to second-hand tobacco smoke was not moot, even though he had been transferred to another housing block and the prison had implemented a restrictive smoking policy. The plaintiff was housed in a cell block without individual cell windows and the prisoner claimed that the new policy was not actually being enforced. Davis v. New York, #01-0118, 316 F.3d 93 (2nd Cir. 2002).

     Prisoner stated an 8th Amendment claim for unreasonable exposure to second-hand tobacco smoke when he asserted that the exposure continued for about six weeks and that the defendant officials were deliberately indifferent to the risk this could have to his health. Sanders v. Kingston, #02-2541, 53 Fed. Appx. 781 (7th Cir. 2002).

Video Surveillance

     Male prisoner's Eighth Amendment rights were not violated by his being restrained naked on a table for two days and being videotaped and observed by female prison personnel after he provoked a violent disturbance. Prisoner had been stripped to ensure that he did not possess contraband or a weapon, and had himself removed a blanket which prison personnel attempted to use to cover him. Use of stun gun earlier to control prisoner was not excessive. Camp v. Brennan, #02-2003, 54 Fed. Appx. 78 (3rd Cir. 2002).

Work/Education Programs

     A union officer had standing, under California state law, to sue the state as a taxpayer to make it ensure that a joint venture company employing prisoners paid them "prevailing wages" when they were employed under a statute, Ann. Cal. Penal. Code Sec. 2717.1 et seq., requiring them to work to reimburse the state for the cost of their confinement. Vasquez v. State of California, #D038889, 129 Cal. Rptr. 2d 701 (Cal. App. 4th Dist. 2003).