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

Administrative Liability: Training

     Arrestee suffering from mental illness failed to show that county was deliberately indifferent in its training of police on the rights of mentally ill persons. County training programs did address how to deal with mentally ill persons and there was no indication that the county had any notice that mentally ill persons had suffered violations of their constitutional rights. Miami-Dade County v. Walker, No. 3D02-544, 837 So. 2d 1049 (Fla. App. 3rd Dist. 2002), rehearing and rehearing en banc denied (2003).

Assault and Battery: Chemical

     There was a genuine issue of fact as to whether an officer's use of pepper spray was reasonably necessary to subdue a man being arrested for disorderly conduct, but the officer did not engage in deliberate indifference to the arrestee's serious medical needs by failing to immediately call an ambulance after the use of the spray, in the absence of any evidence that the delay caused any harm. The evidence further showed that the arrestee declined the officer's offer to give him a towel and water to flush out his eyes. Mantz v. Chain, 239 F. Supp. 2d 486 (D.N.J. 2002).

Assault and Battery: Physical

     Jury could reasonably conclude that an arresting officer used excessive force in light of arrestee's claim that he was an "innocent bystander" and had done nothing to provoke the officer except express his concern about alleged mistreatment of others, and that the officer continued to use force against him after he was in custody and subdued. Force allegedly used included throwing the arrestee to the ground after he was handcuffed, striking him in the back of the head, and kneeing him. Award of $5,000 in compensatory damages and $50,000 in punitive damages was not excessive when plaintiff had injuries resulting in $173 in medical expenses and claimed that he suffered fear, pain, and humiliation because of the officer's actions. Burbank v. Davis, 238 F. Supp. 2d 317 (D. Maine 2003).

Defamation

     Arrestee could not pursue defamation claim against police chief for statements to reporters which were either true or had not been proven to be false. Additionally, the chief's statement that the arrestee had received training in the army as a sniper, even if it were shown to be false, was not defamatory, and his statements of pure opinion could not be the basis of a defamation lawsuit. Yoge v. Nugent, #01-2131, 321 F.3d 35 (1st Cir. 2003).

Defenses: Qualified Immunity

     UPDATE: While officers' investigatory stop of a man standing on his own porch based solely on a tip from an anonymous source violated the suspect's Fourth Amendment rights, the officers were still entitled to qualified immunity because the dispatcher had told them that the man could be intoxicated and armed, which the officers could reasonably rely on without knowing the source of the information. The officers acted properly in preventing him from retreating inside the home, which would have interfered with their investigation, and in arresting him once he resisted and bit an officer. Feathers v. Aey, No. 02-3368, 319 F.3d 843 (6th Cir. 2003).

     State and federal agents who detained and handcuffed employees for three and a half hours in 1996 while executing a search warrant for unlawful drugs on a workplace were entitled to qualified immunity. Such a search warrant carries with it limited authority to detain the occupants of the premises while a proper search is conducted, and it was not shown either that the length of the detention was unreasonable under the circumstances or that the agents were unreasonable in their belief that they were not violating clearly established law when they displayed drawn guns, and pushed one of the employees to the ground when he failed to obey an order to "get down." Pikel v. Garrett, #01-3850, 55 Fed. Appx. 29 (3rd Cir. 2002).

Defenses: Statute of Limitations

     Statute of limitations on former prisoner's civil rights claim against police officers for allegedly coercing a witness to falsely testify against him in a murder case was not tolled (extended) under Illinois law by either his incarceration or the finding that he had a mental disability for purposes of Social Security benefits (when there was no showing that he was unable to manage his own affairs). Chatmon v. Easton, #02-2377, 56 Fed. Appx. 261 (7th Cir. 2002).

     Statute of limitations started running on billiard hall owner's federal civil rights claim at the time that a trial court dismissed a prosecution against him for violating an ordinance prohibiting minors from being on his premises. (His lawsuit claimed, among other things, that the application of the ordinance violated equal protection of the law, since it was only enforced against for-profit, privately owned billiard rooms and not against city-owned, public recreation centers). The city, by appealing the dismissal, did not engaged in a "continuing violation" which would toll (extend) the limitations period. Lawsuit was properly dismissed as time-barred. Trzebuckowski v. City of Cleveland, #01-3509, 319 F.3d 853 (6th Cir. 2003).

False Arrest/Imprisonment: No Warrant

     City was not entitled to summary judgment on false arrest claim made by methadone clinic counselor seen handing a paper bag to a person outside who was subsequently found in possession of methadone bottle with someone else's name on it as well as heroin. Evidence submitted did not clearly show knowledge of prior drug activity in the area or whether the counselor was arrested before or after the drugs were found on the other person. Giannullo v. City of New York, No. 02-7357, 322 F.3d 139 (2nd Cir. 2003).

     Police officer had probable cause, under Iowa law, to arrest a juvenile driver for refusal to sign a traffic citation based on his disobedience of a direction to exit his vehicle to do so. State law allows an officer to issue a citation in lieu of arrest under these circumstances, but does not require him to do so. Lawyer v. City of Council Bluffs, Iowa, 240 F. Supp. 2d 941 (S.D. Iowa 2002).

     Officers were entitled to qualified immunity for arresting a man during a valid investigatory stop for refusing to identify himself, charging him with interference with official acts. The issue of the legality of such an arrest was not clearly established, and the federal appeals courts are split on the issue, and the U.S. Supreme Court, in Kolender v. Lawson, 461 U.S. 352 (1983), expressly declined to decide whether an arrest for refusing to give one's name to the police violates the Fourth Amendment. Shepard v. Ripperger, No. 02-1939, 57 Fed. Appx. 270 (8th Cir. 2003).

     Evidence showed that probable cause existed for the arrest of the plaintiff on charges of impersonation of a law enforcement officer while attempting to sell security alarm systems without a license. In light of the absence of any constitutional violation by the officer, there also were no grounds for liability on the part of the county or sheriff. Gantt v. Whitaker, No. 02-1340, 57 Fed. Appx. 141 (4th Cir. 2003).

     Probable cause did not exist to arrest an individual for failure to disperse from private property when a state trooper ordered him to do so. Statute under which he was arrested only applied to disorderly conduct in public, as opposed to private places, and the language concerning orders to disperse required that at least three persons be involved in the conduct, but there were only two persons who refused to disperse when the arrest occurred. Gardner v. Williams, No. 02-5363, 56 Fed. Appx. 700 (6th Cir. 2003).

False Arrest/Imprisonment: Warrant

     Police detective reasonably relied on complainant's information in submitting applications for arrest warrants for charging man with attempted residential entry and rape, despite inconsistencies in her story and suspect's protestations of innocence. Statements of another detective to the press essentially repeating this information could not be the basis, under Indiana state law, for a defamation claim, as they were not made with knowing falsity or in reckless disregard of the truth. Beauchamp v. City of Noblesville, Indiana, No. 02-2568, 320 F.3d 733 (7th Cir. 2003).

     Officer had probable cause to arrest a civilian police department employee for fraudulently receiving overtime pay when his investigation appeared to show that she was elsewhere, including at another job teaching aerobics, at times when she had allegedly received overtime pay from the police department. The arrestee's ultimate acquittal on the charges did not alter the existence of probable cause at the time of the arrest. The officer's investigation was the basis for the warrant on which the plaintiff was arrested. Dintino v. Echols, 243 F. Supp. 2d 255 (E.D. Pa. 2003).

     Officers who obtained arrest warrant for man suspected of larceny of air compressor from construction site were not liable for alleged violations of arrestee's civil rights when any purported false statements in the affidavit for the warrant were reasonably based on the verbal and written statements of complainants' about the suspect's actions and documents showing the ownership of the compressor missing from the site. Sietins v. Joseph, 238 F. Supp. 2d 366 (D. Mass. 2003).

Firearms Related: Intentional Use

     Sheriff and SWAT team members were not entitled to qualified immunity for death of man shot and killed in his home after he resisted being taken into custody for a psychiatric evaluation. If plaintiff's factual allegations were true, and decedent was in the process of surrendering when he was shot and killed, use of deadly force against him was clearly excessive. Warrantless entry into the home when the man had "not committed" any crimes and there was no immediate need to subdue him was "reckless" and an excessive use of force. Federman v. County of Kern, No. 01-16691, 2003 U.S. App. Lexis 7180 (9th Cir.).

     Officers did not violate any clearly established constitutional rights in 1987 when they made a "split second" decision to shoot a suspect after she had thrown a knife at one of them in an attempt to kill him, and made an assault on a second officer by throwing a glass at him, as well as being near a source of additional potential weapons. They were therefore entitled to qualified immunity. No prior case law from either the U.S. Supreme Court or the Court of Appeals for the Eleventh Circuit ruled that using deadly force under such circumstances was excessive. Willingham v. Loughnan, No. 99-4005, 321 F.3d 1299 (11th Cir. 2003).

     A factual issue as to whether an officer was inside or outside of his vehicle when a motorist began driving towards him prevented summary judgment on the issue of whether the officer reasonably feared for his own safety and life at the time he shot and killed the motorist. Martin v. Dishong, #02-1173, 57 Fed. Appx. 153 (4th Cir. 2003).

First Amendment

     Florida statutes under which protesters at Disney World were threatened with arrest if they did not disperse were unconstitutional under the First Amendment because they were not "content neutral," prohibiting retarding of traffic except for purposes of charitable solicitation or political campaigning, or offering literature to the occupant of a car even if there was no effect on traffic or safety. Bischoff v. Florida, 242 F. Supp. 2d 1226 (M.D. Fla. 2003).

Freedom of Information

     Police officers association was not entitled under California's Public Records Act, Cal. Gov. Code Sec. 6252(e), to access to a database of information maintained and compiled by the county public defender's office. The database, composed of information from client files as well as public records was not a public record "related to the conduct of the public's business," but rather served a "private function," that of aiding the public defender in the representation of its clients. Coronado Police Officers Association v. Carroll, No. D039198, 131 Cal. Rptr. 2d 553 (Cal. App. 4th Dist. 2003).

Governmental Liability: Policy/Custom

     Homeowners who contend that the search warrant used to enter their home described a distinctly different residence could pursue their claim for municipal liability. Their allegations that three of the officers involved in the search had previously been named as defendants in other civil suits as a result of raiding the wrong house and that they were then given no additional training, if true, was sufficient to allow an inference that the city was deliberately indifferent to such incidents. Smith v. City of Detroit, 238 F. Supp. 2d 896 (E.D. Mich. 2003).

Interrogation

     Officers could detain employees of business while executing a search warrant on the premises to find evidence of alleged fraudulent practices, but they could not require them to submit to custodial interrogation as a condition of release. Ganwich v. Knapp, No. 01-35677, 319 F.3d 1115 (9th Cir. 2003).

Police Plaintiff: Vehicle Related

     Trial court improperly allocated 80% of fault for an accident to a motorist and 20% to the police officer in a case where the officer was traveling 99 miles per hour in violation of the speed limit while responding to an emergency call at the time of the collision. The officer had not activated his siren and therefore was not entitled to a statutory exemption from liability. He therefore would be treated the same as any private person using a public highway for purposes of allocating blame. Appeals court finds equal fault on the part of the motorist and the officer, resulting in an award of damages to neither in their cross-complaints against each other. Bonds v. Emerson, 94 S.W.3d 491 (Tenn. App. 2002).

Procedural: Amendment of Complaint

     Arrestees were entitled to amend their complaint against deputy sheriff, prosecutor and other defendants claiming false arrest, malicious prosecution, conviction and imprisonment for sexual abuse of a child in case where child later recanted his testimony. Initial complaint did not contain enough specific facts for court to determine whether absolute or qualified immunity applied to the defendants' alleged conduct. Broam v. Bogan, No. 01-17246, 320 F.3d 1023 (9th Cir. 2003).

Public Protection: Arrestees

     Officers were not responsible for intoxicated arrestee's death from drowning while trying to escape on the basis of their own failure to rescue him or their alleged prevention of bystanders' rescue efforts. Officers were entitled to qualified immunity, as no reasonable officer could believe that these actions violated the arrestee's clearly established rights. Hermann v. Cook, 240 F. Supp. 2d 626 (W.D. Ky. 2003).

Public Protection: Crime Victims

     Police officers who declined to enter an apartment when responding to a neighbor's 911 call reporting that a woman inside had screamed were not "deliberately indifferent" to the rights of the woman resident who was raped and murdered. The officers heard nothing from inside during their investigation and made a good faith decision not to attempt to enter. Schieber v. City of Philadelphia, No. 01-2312, 320 F.3d 409 (3rd Cir. 2003).

Pursuits: Law Enforcement

     Mississippi Supreme Court upholds finding of liability of city for death of bystander killed when her vehicle was hit by a car driven by a check forgery suspect who was fleeing from police pursuit through a residential neighborhood. Court rules that officers acted in reckless disregard for the safety of others in conducting the pursuit, and were therefore not entitled to governmental immunity when they did not know whether the pursued suspect had committed a felony or a misdemeanor, violating the department's own order concerning the beginning of pursuits. City of Jackson v. Brister, No. 2001-CA-01393-SCT, 838 So. 2d 274 (Miss. 2003).

Racial Discrimination

     African-American mother and her friends stated a viable claim for racial discrimination based on allegation that a police officer, who she asked be sent to the scene after her children and herself faced racial harassment and assault by white neighbor's children and neighbor, only spoke to white residents when he arrived there, and then arrested three African-Americans, allegedly for complaining that they were being ignored. Hardy v. Emery, 241 F. Supp. 2d 38 (D. Maine. 2003).

     Officer did not deny a black detainee equal protection when he singled him out for interrogation from a group of six people, all the rest of whom were white. A police dispatcher had told the officer that the detainee had the same last name as a suspected bank robber, and that, rather than race, was the basis for the detainee being singled out for questioning. Arrington v. City of Davenport, 240 F. Supp. 2d 984 (S.D. Iowa 2003).

Search and Seizure: Home/Business

     Officers could properly enter an apartment in order to complete an investigatory stop of an individual who fled inside, and did not use excessive force in stopping his relatives from preventing them from removing him from the apartment to complete his questioning. Rivera v. Washington, No. 01-1595, 57 Fed. Appx. 558 (4th Cir. 2003).

     There were genuine issues of fact as to whether a parent's alleged consent to a police officer and social workers to enter their home to investigate suspicion of child neglect without a warrant was coerced, so that officers and social workers were not entitled to summary judgment on parent's claim that they violated the Fourth Amendment and Ohio state constitution in entering the premises. Walsh v. Erie County Dept. of Job and Family Services, 240 F. Supp. 2d 731 (N.D. Ohio 2003).

     Presence of officers during a court-sanctioned entry into a man's residence by his wife in connection with divorce proceedings to retrieve some of her possessions did not constitute an illegal search and seizure in violation of federal and state constitutional provisions. The plaintiff's federal civil rights claims against the city and officers were frivolous and the defendants were therefore entitled to an award of attorneys' fees. Todd v. City of Natchitoches, 238 F. Supp. 2d 793 (W.D. La. 2002).

Search and Seizure: Person

     Sweep of high school for drugs with drug sniffing dogs by sheriff's personnel at the request of school authorities, combined with pat-down searches and a strip search of a student in a private room on the basis of individualized suspicion once a package of drugs was found were not unreasonable. Officers also did not use excessive force in allegedly choking a student to prevent him from swallowing a package of marijuana seeds, but their subsequent strip search of him in the school's parking lot was "excessively intrusive." Rudolph v. Lowndes County Board of Education, 242 F. Supp. 2d 1107 (M.D. Ala. 2003).

     Officers had a reasonable basis for making an investigatory stop of a man reported to be walking "wet and barefoot" through a neighborhood while talking to himself. Information provided by neighborhood residents gave officers grounds to be concerned about his well being, since they could believe that he might be under the influence of drugs, in need of medical assistance, or suffering from mental illness. Jogger's equal protection rights were not violated by the fact that the officers stopped and questioned him while he was barefoot, but did not stop and question other joggers who were wearing shoes. Cady v. Village of McCook, #02-2579, 57 Fed. Appx. 261 (7th Cir. 2003).

     Male officer's alleged cross-sex pat-down searches of female arrestees, even if in violation of police department policies, were reasonable under the Fourth Amendment and therefore were not a basis for a constitutional civil rights claim when searches were minimally intrusive and carried out in a routine manner. Searches were adequately contemporaneous with the arrests when they were carried out upon the arrestee's arrival at the police station. Wyatt v. Slagle, 240 F. Supp. 2d 931 (S.D. Iowa 2002).

Search and Seizure: Vehicle

     When officers knew that the vehicles in question had been rebuilt from salvage and had been told that replacement parts might either not have VIN numbers or else not match the public VIN of the vehicles, there was a genuine issue of fact as to whether the officers reasonably believed that missing or mismatched VIN numbers established probable cause for seizure of the vehicles. Appeals court rules that there was also a valid issue as to the adequacy of the procedure provided by the state of Arkansas for car owners to recover vehicles seized by police. King v. Fletcher, No. 022-1967, 319 F.3d 345 (8th Cir. 2003).

Arbitration Procedures

     Arbitrator concludes he has the power, under contractual grievance procedures, to interpret and implement a civil service board remedy. Sheriff of Cook County and AFSCME L-3692, 117 LA (BNA) 1745 (Wolff, 2002).

Certification Rights, Standards and Procedures

     California appeals court upholds a state law requiring candidates for sheriff to have prior law enforcement experience. Rawls v. Zamora, #H024372, 2003 Cal. App. Lexis 552 (6th Dist. 2003).

Defamation - In General

     Federal appeals court holds that a county is not liable under §1983 for public statements made by a member of the county board of commissioners concerning the job performance of a county employee. Also, under state law, the commissioner was entitled to absolute immunity for his statements. LaVerdure v. Co. of Montgomery, #02-2773, 2003 U.S. App. Lexis 6547 (3rd Cir. 2003).

Disability Rights and Benefits - Heart, Lung and Presumption Laws

     New Jersey Supreme Court awards compensation benefits to a retired fire captain who contracted emphysema, even though he was a heavy smoker for many years and had a family history of the condition. Lindquist v. Jersey City Fire Dept., A-84-01, 175 N.J. 244, 814 A.2d 1069 (2003).

Disciplinary Discovery

     Supreme Court declines to review the termination of a police officer who had been fired for excessively self-centered personality traits. The officer's appeal was dismissed for a repeated failure to comply with the city's discovery requests. Dismissal of an appeal is an appropriate sanction, and does not deny an appellant's due process rights. Joseph v. Salt Lake City, #20010399-CA, 2002 UT App 254, 53 P.3d 11; cert. den., #02-1211, 2003 U.S. Lexis 2973 (4/21/2003).

Disciplinary Hearings - Proof Required

     Arbitrator reinstates a corrections officer who was fired for abusive and profane language towards a lieutenant. The lieutenant was no longer employed at the prison and the hearsay evidence against her was not sufficiently persuasive to warrant her termination. Wackenhut Corrections Corp. and Delaware Co. Prison Employees, 118 LA (BNA) 63 (O'Connor, 2003).

Disciplinary Hearings - Tenured/General

     California appeals court holds that officers are not entitled to confront and cross-examine witnesses during a Bill of Rights hearing contesting the contents of a written memoranda, placed in their personnel files, for use during their next performance review. James v. City of Coronado, #D039686, 2003 Cal. App. Lexis 313 (4th Dist. 2003).

Disciplinary Hearings - Untenured

     Terminated at-will police officer did not have a protected property interest in continued employment, and could not show that the defendants made any untrue or stigmatizing public statements. Eddings v. City of Hot Springs, #02-1895, 2003 U.S. App. Lexis 4246 (8th Cir. 2003).

Disciplinary Offenses

     Arbitrator upholds disciplinary action against a corrections officer who threatened to "get even" with an inmate that had filed grievance against an officer; corrections officials cannot punish or retaliate against inmates who exercise their First Amendment rights. In re Wackenhut Corrections Corp. and Delaware County Prison, 117 LA (BNA) 1802 (Smith, 2002).

Employee Harassment - Nonsexual

     Pennsylvania appeals court affirms right of a woman police lieutenant to recover benefits for stress resulting from male harassment because of her promotions. The city had failed to seriously investigate her claims in a timely manner. Sloan v. City of Pittsburgh Police Dept., #1024 C.D. 2002 (Unpub., Pa. Commw. 2003).

Fair Labor Standards Act - 7K Exemption

     Federal appeals court holds that a city can elect not to use the FLSA's Section 207(k) exemption and to pay a firefighter assigned to administrative duties overtime after 40 hours a week. Potter [and Sharpe] v. Cureton, #00-5805, 319 F.3d 259 (6th Cir. 2003).

Handicap Laws / Abilities Discrimination - Accommodation - General

     A court employee with "cluster headaches" who frequently had been given leave time over a period of years, was not entitled to an "indefinite leave," which is not a reasonable accommodation. Wood v. Green, #02-12971, 2003 U.S. App. Lexis 4470 (11th Cir. 2003).

     Federal appeals court holds that a city had no duty to accommodate, and could lawfully terminate a deputy marshal who, after an injury, was unable to hold a firearm in his right hand. Kaplan v. City of North Las Vegas, #02-16048, 2003 U.S. App. Lexis 6221 (9th Cir. 2003).

Handicap Laws / Abilities Discrimination - Constitutionality

     The Eleventh Amendment does not prevent the United States from suing a state under the ADA. U.S. v. Miss. Dept. of Public Safety, #02-60048, 2003 U.S. App. Lexis 1965, (5th Cir. 2003).

Handicap Laws / Abilities Discrimination - Light Duty

     Federal court rejects claim that a disabled detective was entitled to a permanent light duty position. The fact that he satisfactorily performed his duties in a wheelchair while his condition was under evaluation did not require management to make the assignment a permanent one. Doner v. City of Rockford, 2003 U.S. Dist. Lexis 1792, 2003 WL 262514 (N.D. Ill. 2003).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     A person with voice impaired by laryngeal dysphonia is not substantially limited in the ability to talk. Hooper v. Saint Rose Parish, #99 C 6267, 2002 U.S. Dist. Lexis 10936 and 205 F.Supp.2d 926 (N.D. Ill. 2002).

     A manager with attention deficit hyperactivity disorder was not entitled to reinstatement following his termination for repeated tantrums. Calef v. The Gillette Co., #02-1444, 322 F.3d 75 (1st Cir. 2003).

Homosexual & Transgendered Employee Rights

     Federal court in Ohio gives a police officer $320,511 in damages for discrimination after he changed his gender to female. Barnes v. Cincinnati, #C-1-00-780, 41 (2001) G.E.R.R. (BNA) 294 (S.D. Ohio 2003).

Military Leave

     Arbitrator holds, in the absence of specific language, pay differentials given to sheriff's officers on military leave should include housing allowances in the computation only for those who did not incur additional housing expense when serving on military leave. Franklin Co. Sheriff's Office and FOP L-9, 117 LA (BNA) 1821 (Goldberg, 2002).

National Origin Discrimination

     Jury awards $3,591,000 to an Asian-American LAPD officer who allegedly suffered harassment and retaliation from his supervisors. The incidents, over a seven-year period, ranged from a failure to respond to his backup calls to putting women's underwear in his work mailbox. Nagatoshi v. City of Los Angeles, Superior Ct. #BC260299, 41 (2004) G.E.R.R. (BNA) 383 (jury verdict 2003).

Past Practices, Precedents & Zipper Clauses

     Arbitrator overturns a management requirement that detectives take off on a specified holiday, rather than choose their leave day, where a past practice of choosing a floating recreation day had been followed for more than ten years. The right of management to determine work periods did not override a past practice. In re Port of Portland and AFSCME L-1847, 118 LA (BNA) 83 (Reeves, 2002).

Political Activity/Patronage Employment

     Ninth Circuit upholds the rights of a newly elected prosecutor to terminate at-will confidential secretaries that were hired by and loyal to his predecessor. Hobler v. Brueher, #00-35589, 2003 U.S. App. Lexis 6596 (9th Cir. 2003).

Race: Affirmative Action & Quotas

     Federal appeals court holds that Boston, acting under a 29-year-old federal court decree, overcorrected its disparate hiring of white firefighters and was now biased against them. Quinn v. City of Boston, #02-1727, 2003 U.S. App. Lexis 5860 (1st Cir. 2003). However, the city's race-conscious plan to promote African-American police officers, which had the same ranking as whites on the promotional eligibility list, was constitutional because of a proven need to remedy past discrimination. Cotter v. City of Boston, #02-1404, 2003 U.S. App. Lexis 5695 (1st Cir. 2003).

Race and Sex Discrimination - In General

     Update: New Jersey police and fire discrimination cases still active after 30 years. Vulcan Pioneers v. New Jersey, #950-73 (D.N.J.); Bronze Shields v. New Jersey, #2022-72 (D.N.J.).

Race or Sex Discrimination - Disparate Discipline

     Ohio appeals court rejects state liability for the termination of a woman probationary trooper, and the reinstatement of a tenured male trooper, after an evening of drinking and consensual sex. Browning v. Ohio Highway Patrol, #02AP-814, 151 Ohio App.3d 798 (10th Dist. Ohio App. 2003).

Religious Discrimination

     Supreme Court declines to hear the appeal of a "Five Percent" adherent, who claimed he was fired because of his religious beliefs. Allah v. City of N.Y., #01-9114, 47 Fed. Appx. 45 (Unpub. 2nd Cir. 2002); cert. denied, 2003 U.S. Lexis 1761 (S.Ct. 2003).

Retirement Rights and Benefits

     Supreme Court to decide, in the 2003 Fall Term, whether a retirement plan designed to benefit workers currently over age 50 discriminates against younger employees. General Dynamics Land Systems v. Cline, #02-1080, cert. gtd., (2003); prior decision at 296 F.3d 466 (6th Cir. 2002).

Sexual Harassment - In General

     A prison warden's preferential treatment of his paramours was not pervasive harassment and did not alter the conditions of the plaintiffs' employment because of their gender. Mackey v. Dept. of Corrections, #C040262, 105 Cal.App. 4th 945, 130 Cal.Rptr.2d 57, 2003 Cal. App. Lexis 120 (2003).

Sexual Harassment - Verdicts, Settlements & Indemnity

     California county agrees to pay $250,000 to a former ranger for gender bias and harassment. She alleged continuing mistreatment after the county settled an earlier lawsuit that she had filed. Christensen v. Monterey County, as rptd. in the Monterey Herald (3-23-2003).

Union and Associational Activity

     Arbitrator finds that management improperly lowered two employee's performance ratings in retaliation for their union organizing activities. Naval Surface Weapons Center (Carderock Div.). and Int. Assn. of Mach. & Aerospace Workers L-282, 118 LA (BNA) 55 (Allen, 2002).

     Federal appeals court allows a union to charge a "reentry fee" equal to unpaid dues, to former union members who resigned but continued to be members of the bargaining unit, as it promotes union membership, and permits members to resign without coercion. Lee v. NLRB, #01-1434, 2003 U.S. App. Lexis 6572 (6th Cir. 2003).

Wrongful Discharge/Discipline: Damages & Settlements

     New York trial court reduces a $10 million punitive damages jury award to $500,000. A wrongfully terminated worker endured hostile and egregious behavior from hotel magnate Leona Helmsley, aka the "Queen of Mean", but the damages were grossly excessive. Bell v. Helmsley, #111085/01, 2003 N.Y. Misc. Lexis 192, 91 FEP Cases (BNA) 320 (N.Y. Misc. 2003).

Access to Courts/Legal Info

     Sheriff's refusal to transport a pretrial detainee to the courthouse for a civil personal injury case unrelated to his criminal case did not violate his right of access to the courts. Sheriff's action was not taken for a punitive purpose and had a rational relationship to a legitimate interest in keeping detainees in jail unless absolutely necessary. Simmons v. Sacramento County Superior Court, No. 01-16309, 318 F.3d 1156 (9th Cir. 2003).

     Michigan prison inmates did not have a constitutional right to continue to have their legal counsel in a class action lawsuit against prison officials, Prison Legal Services of Michigan, housed in offices in trailers on prison grounds. Prison officials had a legitimate interest in exercising its judgment over the management of the prison, including making decisions about the number of auxiliary trailers it could safely deploy on the premises. Cain v. Department of Corrections, No. 239116, 657 N.W.2d 799 (Mich. App. 2002).

Defenses: Absolute Immunity

     Hearing officer's alleged action of disclosing a prisoner's identity as a confidential informant without first consulting the warden, even if it exceeded her authority, could not be the basis for liability in the prisoner's federal civil rights lawsuit, as she was entitled to absolute immunity for discretionary actions taken in her official capacity. Williams v. McGinnis, #02-1336, 57 Fed. Appx. 662, 2003 U.S. App. Lexis 1879 (6th Cir. 2003).

Defenses: Statute of Limitations

     Statute of limitations on former prisoner's civil rights claim against police officers for allegedly coercing a witness to falsely testify against him in a murder case was not tolled (extended) under Illinois law by either his incarceration or the finding that he had a mental disability for purposes of Social Security benefits (when there was no showing that he was unable to manage his own affairs). Chatmon v. Easton, #02-2377, 56 Fed. Appx. 261 (7th Cir. 2002).

Employment Issues

     Correctional officer allegedly forced to quit after he reported a co-worker's misconduct in playing cards with a group of inmates stated a possible claim for violation of his First Amendment rights based on tolerance of supervisors of harassment of him for making the report, since tolerance of such conduct was a "matter of public concern." Baron v. Hickey, 242 F. Supp. 2d 66 (D. Mass. 2003).

Escape

     Prisoner who escaped while on work release was barred from appealing a judgment denying his claim to recover his wages, which were paid to the correctional institution and treated as forfeited or abandoned due to his escape. Intermediate Missouri appeals court rules that "escape rule" applies in that state to allow a court to dismiss either a criminal appeal or an appeal in a civil case based on a prisoner's escape from custody. Spencer v. Ouverson, No. WD 60109, 98 S.W.2d 69 (Mo. App. W.D. 2002).

Extradition

     Prisoner's claim for damages and declaratory relief challenging the validity of his extradition from Georgia to New York to serve a sentence on a New York conviction without a signed extradition warrant, a hearing or a waiver of his extradition rights was not barred by the fact that his conviction or sentence had not previously been invalidated. The claim was, in essence, for a violation of the prisoner's right to procedural due process and did not depend on the validity of the underlying conviction and sentence, so the principles stated in Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641 (1997) did not bar the lawsuit. Harden v. Pataki, #01-15186, 320 F.3d 1289 (11th Cir. 2003).

False Imprisonment

     There was a material issue of fact as to whether a classification officer and an assistant warden acted with deliberate indifference to the issue of whether a prisoner was being kept confined beyond the expiration of his sentence, violating his constitutional right to a timely release from prison, after prisoner filed a grievance allegedly informing them of the correct commencement date of his sentence. McCurry v. Moore, 242 F. Supp. 2d 1167 (N.D. Fla. 2002).

Firearms Related

     Even if there was a triable issue of fact as to whether a correctional officer's decision to shoot a prison inmate in the leg during a disturbance which included an assault on another prisoner was malicious, the officer was entitled to qualified immunity since he could have reasonably believed that shooting this prisoner in order to stop the assault was a good faith effort to restore order. Marquez v. Gutierrez, No. 02-15017, 322 F.3d 689 (9th Cir. 2003).

First Amendment

     Jail officials did not violate prisoner's First Amendment rights by disciplining him for the use of insolent and threatening language in grievances that he filed. "True threats" are not protected at all under the First Amendment, and the purpose of the grievance procedure was to bring issues to the attention of jail authorities, not to provide a forum to make "disparaging, degrading" or abusive comments about jail staff members. In Re Parmelee, No. 47231-3-I, 63 P.3d 800 (Wash. App. 2003).

     Prisoner's removal from supervised release program for activities advocating the legalization of marijuana enjoined by federal trial court. Court finds that activities, including speaking to the press, passing out literature outside a courthouse, running a website, and running television commercials were all lawful actions protected by the First Amendment. Forchion v. Intensive Supervised Parole, 240 F. Supp. 2d 302 (D.N.J. 2003).

Medical Care

     Estate of detainee who died after he was removed from hospital following his arrest against medical advice stated a claim against county under Alabama law for allegedly failing to fund adequate medical care for prisoners in county jail and for deliberate indifference to serious medical needs in violation of civil rights. Pre-trial detainee was being treated for renal failure and pneumonia in hospital, and his condition worsened after his removal, leading to treating physician's recommendation that he be re-hospitalized, a request which the sheriff allegedly refused. Gaines v. Choctaw County Commission, 242 F. Supp. 2d 1153 (S.D. Ala. 2003).

     Inmate alleged sufficient facts to state a claim against prison superintendent and health services manager for acting with deliberate indifference to his serious medical needs arising from spastic partial paralysis causing his foot to flex and his toes to curl into a claw and related chronic pain management issues. Defendants allegedly knew of inadequate care but did not take action to prevent further violations of prisoner's rights. Lavender v. Lampert, 242 F. Supp. 2d 821 (D. Ore. 2002).

Medical Care: Dental

     Trial court improperly granted summary judgment on prisoner's claim for "deliberate indifference" to his serious medical needs to a dentist who only provided him with dentures fifteen months after first prescribing them as medically necessary, and one month after prisoner filed suit. Farrow v. West, #01-13846, 320 F.3d 1235 (11th Cir. 2003).

Overcrowding

     Federal trial court did not have authority, under Prison Litigation Reform Act, to enjoin further transfer of female prisoners eligible for state incarceration from county jails to an allegedly overcrowded Alabama state prison, since only a three-judge panel may issue "prisoner release orders," and only under certain circumstances. 18 U.S.C. Sec. 3626(a)(3). Further, the requested order would conflict with an existing order by a state court in pending litigation in which the state officials had been ordered to accept "state-ready inmates" sent from county jails. At the same time, the defendant prison officials' alleged "lack of funds" did not excuse them from presenting a satisfactory plan to alleviate problems of overcrowding at a state women's prison previously found to violate inmates' Eighth Amendment rights. Laube v. Haley, 242 F. Supp. 2d 1150 (M.D. Ala. 2003).

Parole

     Claim that an amendment to a Delaware parole statute allegedly extending the time between parole reconsideration hearings violated prisoners' rights was frivolous since neither the parole statute nor the due process clause gave prisoners a protected liberty interest in a hearing at a particular time. Ross v. Snyder, 239 F. Supp. 2d 397 (D. Del. 2002).

Prison Litigation Reform Act: Exhaustion of Remedies

     Federal appeals court rules that prisoner satisfied the "exhaustion of available administrative remedies" requirement sufficiently by alleging that he was unable to timely file an initial grievance because of his broken hand. Appeals court vacates dismissal of prisoner's civil rights lawsuit for damages, based on his broken hand from slip and fall in prison dining area. Days v. Johnson, #02-10064, 322 F.3d. 863 (5th Cir. 2003).

     Prisoner could decide, under New York state regulations, not to appeal an adverse administrative decision of his prison grievance, but that decision forfeited his right to bring a federal civil rights lawsuit, under the requirement in the Prison Litigation Reform Act (PLRA) 42 U.S.C. Sec. 1997(e) that available administrative remedies first be exhausted. U.S. Supreme Court's decision in Porter v. Nussle, 534 U.S. 516 (2002) (exhaustion of remedies requirement applies to all prisoner seeking redress for prison circumstances or occurrences) applies retroactively to claims filed before the ruling. Santos v. Hauck, 242 F. Supp. 2d 257 (W.D.N.Y. 2003).

     Requirement that a prisoner exhaust available administrative remedies before pursuing a federal civil rights lawsuit applies to pretrial detainees. Plaintiff prisoner's lawsuit seeking his release from special housing unit rejected for failure to exhaust administrative remedies. Additionally, despite the allegedly non-violent nature of the crime with which the detainee was charged, the government presented evidence asserted to link him in some way to individuals implicated in the attacks of September 11, 2001, raising significant security issues with regard to the conditions of his pre-trial incarceration. United States of America v. Al-Marri, 239 F. Supp. 2d 366 (S.D.N.Y. 2002).

Prison Litigation Reform Act: Mental Injury

     Prisoner could not pursue a federal civil rights claim against correctional officials for failure to protect him against other inmates who allegedly threatened him with harm because his crime involved a child when he could not show that he suffered physical harm as a result of the alleged failure to protect. A provision of the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(e) prohibits recovery for mental or emotional injury suffered in custody without a prior showing of physical injury. Wolff v. Hood, 242 F. Supp. 2d 811 (D. Ore. 2002).

Prison Litigation Reform Act: "Three Strikes" Rule

     Prisoner's complaint about being compelled to work in cold weather without warm clothing, or in hot, humid weather despite his high blood pressure did not qualify as a claim of imminent danger of serious physical harm coming under an exception to the "three strikes" rule of the Prison Litigation Reform Act barring access to courts as a pauper following the filing of three or more frivolous lawsuits. Martin v. Shelton, No. 02-2770, 319 F.3d 1048 (8th Cir. 2003).

     Trial judge was not bound by the ruling of another judgment, in another case involving the same plaintiff prisoner, that a prior case with some claims dismissed as frivolous and others dismissed for failure to exhaust administrative remedies did not count as a "strike" for purposes of the "three strikes" rule of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g) prohibiting a prisoner for proceeding as a pauper following three prior frivolous claims. Judge rules that it did, in fact, constitute a "strike." Clemons v. Young, 240 F. Supp. 2d 639 (E.D. Mich. 2003).

     Prisoner who had filed over 200 prior civil actions in federal courts, many of which were dismissed as frivolous, was barred by the "three strikes" rule of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g), from proceeding as a pauper in his most recent filing when he could not show that he was in "imminent danger of physical injury" at the time the complaint was filed, which is the sole exception to the "three strikes" rule. Court notes that allegations of past physical danger are insufficient to invoke the exception. Judd v. Furgeson, 239 F. Supp. 2d 442 (D.N.J. 2002).

Prisoner Assault: By Officers

     Correctional officers assessed $15,000 in compensatory and $30,000 in punitive damages for allegedly using excessive force to restrain 60-year-old prisoner after refusing to look at his written medical restriction offered in explanation for why he was sitting rather than standing in medical clinic's waiting area. Jackson v. Austin, 241 F. Supp. 2d 1313 (D. Kan. 2003).

     Jury's verdict in favor of defendant correctional officers in prisoner's lawsuit claiming that they used excessive force against him upheld. Based on the evidence, the jury could reasonably have believed that the officers' testimony was more credible than the inmate's, and that they used only the force necessary to respond to the prisoner's "physical provocations" during the four incidents at issue. Pickett v. Lindsay, #01-3755, 56 Fed. Appx. 718 (7th Cir. 2002).

Prisoner Discipline

     The imposition of discipline on a prisoner for violating the telephone policy by phoning a former inmate on home confinement was a violation of his due process rights when he did not have fair notice that the policy applied to phoning former prisoners confined at home as well as to those now in halfway houses. Seehausen v. Van Buren, 243 F. Supp. 2d 1165 (D. Ore. 2002).

     Disciplinary conviction of prisoner for violation of a rule against making threats to prison staff members was supported by substantial evidence, including testimony of officer who prepared a misbehavior report after witnessing the conduct. The disputed issue of whether the prisoner intended a threat by suggesting, to an officer, that they "go outside" was an issue of credibility for the hearing officer to resolve. Moore v. Walsh, 755 N.Y.S.2d 447 (A.D. 3 Dept. 2003).

Prisoner Suicide

     Estate of prisoner who died from a prescription drug overdose state a possible claim for negligence by alleging that prison personnel violated policies requiring controlled substance medication to be administered by licensed personnel, and by failing to complete a timely "unusual incident report" (UIR) concerning the prisoner's suicide attempt. Arias v. State of New York, Claim No. 97942, 755 N.Y.S.2d 223 (Ct. Cl. 2003).

Prisoner Transfers

     Prisoner could not pursue a federal civil rights lawsuit over a state's practice of transferring inmates to out-of-state private prisons, since he had no constitutional right to be placed in a particular facility. Prisoner's claim that officials denied timely parole hearings as part of a plan to create overcrowding in state prisons and therefore create a need for transfers to private prisons so that they could increase the value of the stock in private prison corporations allegedly held in their retirement portfolios could not be pursued when prisoner could not show that he was being held beyond his mandatory release date. Madyun v. Litscher, No. 02-1788, 57 Fed. Appx. 259 (7th Cir. 2002).

Probation

     Threats to kill county jail staff members on more than one occasion were sufficient to support the revocation of a prisoner's probation. The threats were made while he was serving a 90 day sentence in the jail as one of the conditions of probation, and there was evidence that he was shown a videotape notifying him of the jail's rules, including the rules against threatening staff members. State v. Payne, No. COA02-809, 577 S.E.2d 166 (N.C. App. 2003).

Public Protection

     Washington State Department of Corrections liable for $22 million to estate of driver killed in collision with offender under Department's community supervision who was driving stolen vehicle. Question of whether Department's failure to take action over offender's violations of conditions of supervision was a cause of the driver's death was for the jury, intermediate appeals court holds. Joyce v. State of Washington, Department of Corrections, #26499-4-II, 64 P.3d 1266 (Wash. App. 2003).

Racial Discrimination

     Admitted policy of using race as a factor--even the dominant factor--in assigning new inmates with their initial cell mate for a 60 day period did not constitute racial discrimination in violation of the right to equal protection. Johnson v. State of California, No. 01-56436, 321 F.3d 791 (9th Cir. 2003).

Sexual Offender Programs

     Prisoner's alleged pedophilia was a "severe mental disorder" qualifying him for commitment as a "mentally disordered offender" under a California statute, Cal. Penal Code Sec. 2962 et seq. Intermediate California appeals court rejects prisoner's argument that pedophiles who commit sex offenses fall exclusively under the Sexually Violent Predators Act, Cal. Welf. & Inst. Code. Sec. 6600 et seq., and are not mentally disordered offenders. The same offenses may qualify a prisoner for imposition of commitment under either of these statutes. Additionally, court finds that the treatment provided under either statute was substantially the same. The prisoner "contends he should be released because his pedophilia is 'under control' and he is not a threat to children. We disagree," the court concluded. "The psychiatric testimony established he was a threat to children, posed a substantial danger to others, and 'might very well molest children again.'" People v. Starr, No. B155507, 131 Cal. Rptr. 2d (Cal. App. 2nd Dist. 2003).

Smoking

     Correctional rule prohibiting the smoking of tobacco did not violate Native American prisoner's right to practice his religion despite his belief that the smoke carries his prayers and would purify his body and spirit. There was an overriding compelling interest in eliminating tobacco in prisons, related to promoting health, reducing litigation, reducing medical costs, and maintaining internal security. Roles v. Townsend, No. 28073, 64 P.3d 338 (Idaho App. 2003).

Strip Search: Prisoners

     Strip search of male prisoner in the presence of female correctional officers could constitute cruel and unusual punishment in violation of the Eighth Amendment if female officers were, as prisoner alleged, "invited spectators" and the search was carried out in a manner designed to humiliate and demean him. Federal appeals court rules that provision of Prison Litigation Reform Act barring claims for mental or emotional injuries without a showing of physical injury did not apply, in this case, to bar claims for nominal or punitive damages. Calhoun v. Detella, #98-2894, 319 F.3d 936 (7th Cir. 2003).

Terrorism/National Security Issues

     U.S. Attorney General John Ashcroft rules that illegal immigrants can be held indefinitely without bond if their cases present national security concerns. The opinion was requested by the Homeland Security Department, which now has authority over most immigration matters, after the Board of Immigration Appeals upheld a judge's decision to release a Haitian asylum-seeker on $2,500 bond. Ashcroft ordered that this decision be vacated, and that the asylum-seeker be denied bond and detained "pending appropriate disposition and proceedings respecting his status under the immigration laws." In Re: D-J-, Respondent, 23 I&N Dec. 572 (A.G. 2003). Interim decision #3448, April 17, 2003.

Visitation

     Under a prior consent decree concerning New York prisoners and correctional rules established to implement the decree, specifically 7 NYCRR Ses. 200.1-200-5, misconduct that is unrelated to visitation cannot be used as the basis for a denial of visitation rights. Accordingly, an inmate's right to contact visitation could not be denied based on his alleged violent behavior against prison staff members, when it had not occurred during a visitation period, and prisoner was entitled to $100 in damages for the denial. Dawes v. State of New York, Claim No. 102133, 755 N.Y.S.2d 221 (Ct. Cl. 2003).