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

Administrative Liability: Supervision

     Former U.S. Attorney General Janet Reno and two other high-level federal officials entitled to qualified immunity from liability for alleged excessive use of force by armed federal agents who executed search and arrest warrants to extract 6 year-old Cuban refugee from a relative's house. Gonzalez v. Reno, No. 01-14475, 2003 U.S. App. Lexis 5762 (11th Cir).

Administrative Liability: Training

     Brain-damaged motorist who claimed that a police officer used excessive force against him in arresting him on suspicion of driving while intoxicated failed to establish a pattern of the use of excessive force against disabled suspects or inadequate training sufficient to support a claim against the municipality. Officers were trained on how to deal with persons with physical and mental disabilities and an explicit policy prohibited the excessive use of force. Pahle v. Colebrookdale Township, 227 F. Supp. 2ed 361 (E.D.Pa. 2002).

Assault and Battery: Handcuffs

     Officers were not entitled to qualified immunity on a claim that they kept two apartment occupants handcuffed for two hours while their apartment was being searched under a warrant. The complaint alleged that they were kept handcuffed long after the officers had reason to believe that they were not connected with persons sought in connection with a shooting. Seaman v. Karr, #27935-5-II, 59 P.3d 701 (Wash. App. 2002).

Defamation

     Former FBI associate director could not pursue, in federal court in Texas, a defamation claim against a New York university professor on the basis of his article, published on the Internet on the university's website, claiming that he was involved in a "conspiracy" to "cover up" advance warning allegedly received by the U.S. government of the terrorist bombing of a flight over Lockerbee, Scotland in 1988. Publication on the website was not sufficient to give personal jurisdiction over the defendant to a court in Texas. Revell v. Lidov, #01-10521, 317 F.3d 467 (5th Cir. 2002).

Defenses: Absolute Immunity

     Prosecutor was entitled to absolute immunity from liability for a decision to prosecute, even if it was purportedly based on an inadequate police investigation. Prosecutor was only entitled, however, to qualified immunity for making statements to the media, but did not violate any clearly established constitutional rights when all that was communicated was the fact of the arrest, even if that caused the arrestee to be held up to ridicule and scorn. Joseph v. Yocum, #01-4142, 53 Fed. Appx. 1 (10th Cir. 2002).

Defenses: Qualified Immunity

     Officer was not entitled to qualified immunity on a claim concerning the arrest of a social visitor to an apartment after a search warrant had been executed there. The need for probable cause to seize the visitor was "clearly established." Gregory v. Oliver, 226 F. Supp. 2d 943 (N.D. Ill. 2002).

Dogs

     Police officer was entitled to qualified immunity for using dog to "bite and hold" suspect who had fled from the scene of a minor traffic accident in 1994, as was police chief who allegedly promulgated a "bite and hold" policy for the use of police dogs. There was no clearly established law at the time indicating that such use of dogs was an excessive use of force. Jarrett v. Town of Yarmouth, #00-2498, 309 F.3d 54 (1st Cir. 2002).

False Arrest/Imprisonment: No Warrant

     Upholding jury verdict in favor of officer on false imprisonment claim by motorist and passenger detained on suspicion of drug offenses, Nebraska Supreme Court finds jury instructions adequate on when an officer may arrest without a warrant. Nauenburg v. Lewis, No. S-01-576 655 N.W.2d 19 (Neb. 2003).

     Probable cause did not exist to arrest television news cameraman filming demonstration in support of 6-year-old Cuban refugee boy. Arrestee, at the time he was seized, was in the process of complying with police orders to get out of a street then blocked to traffic, and force used appeared to be disproportionate to need. Durruthy v. City of Miami, 235 F. Supp. 2d 1291 (S.D. Fla. 2002).

     Police detectives reasonably believed they had probable cause to arrest a father for the 20-year-old murder of his daughter's childhood friend because of the daughter's statements about her purported eyewitness remembrance of the crime and statements from two other daughters indicating that he was a violent pedophile. Franklin v. Fox, #01-15052, 312 F.3d 423 (9th Cir. 2002).

     Probable cause existed for the plaintiff's arrest when he failed to disperse and challenged police authority to take others into custody as part of an eight-person crowd in a parking lot, but there were factual issues as to whether the plaintiff resisted arrest and whether the officer's use of force in making the arrest was excessive. Burbank v. Davis, 227 F. Supp. 2d 176 (D. Me. 2002).

     Police officers had probable cause to arrest a motorist for disorderly conduct after she failed to obey their order that she move her car, which was blocking traffic after being involved in an accident on a busy downtown street during a holiday festival. While motorist claimed that she did not hear their request, she admitted to standing very close to the requesting officer, and indeed had even claimed that he had "violated her personal space." Brown v. Gilmore, #01-1749, 278 F.3d 362 (4th Cir. 2002).

False Arrest/Imprisonment: Warrant

     Man arrested and held for 12 days on arrest warrants intended for his twin brother sufficiently alleged that city warrant procedures constituted a "policy" for purposes of a federal civil rights due process claim against the municipality. Evidence in the case included testimony by the police chief that he was the chief policymaker for the city and was aware that the arrest of the wrong person under a warrant was "not uncommon" and was "particularly acute" for twins, yet he had not established any internal procedures to attempt to remedy this problem. Fairley v. Luman, #99-56483, 281 F.3d 913 (9th Cir. 2002).

False Arrest/Imprisonment: Wrongful Detention

     County sheriff was not liable for false imprisonment for taking plaintiff into custody and continuing to hold him when court sentencing order and release order were ambiguous concerning when and how he should be released from custody on contempt charge for failing to appear at court proceeding. Emory v. Pendergraph, No. COA01-1591, 571 S.E.2d 845 (N.C. App. 2002).

Federal Tort Claims Act

     A factual issue existed as to whether a federal employee was acting within the scope of his employment when his vehicle struck a motorist's car as he was driving his own car at the time and made no effort to attend purported work-related meeting after the collision despite the drivable condition of his vehicle. Plaintiff could therefore challenge U.S. government's attempts to substitute itself as the proper defendant and have the case dismissed for the plaintiff's alleged failure to pursue administrative remedies under the Federal Tort Claims Act, 28 U.S.C. Sec. 2401(b) within two years of the accident. Ware v. Doane, 227 F. Supp. 2d 169 (D. Me. 2002).

Firearms Related: Accidental Use

     Trial court erred in ruling that officer's accidental shooting of auto passenger was reasonable and that he was entitled to qualified immunity. There was a genuine issue of material fact as to whether the officer's manner of approaching the car with his gun drawn and pulling the passenger out of the vehicle was reasonable, based on expert testimony and the claim that the passenger put his hands up and was cooperating. Heyward v. Christmas, #3562, 573 S.E.2d 845 (S.C. App. 2002).

Firearms Related: Intentional Use

     Whether or not the decedent was the bank robber sought or not did not impact the issue of whether the officers were justified in shooting him since he did threaten them with a gun. Plaintiff in excessive force lawsuit against city and officers failed to show that the first shots fired against the suspect incapacitated him, or that he did not point his weapon at the officer after these shots, justifying the shots which killed him. Muhammed v. City of Chicago, #01-4187, 316 F.3d 680 (7th Cir. 2002).

     Family of youth shot and killed inside his parent's house when he brandished a rifle at an officer can pursue its claim for wrongful death against township and officer under New Jersey state law based on the possibility that the officer engaged in "willful misconduct" in allegedly violating a standing order concerning "establishing a perimeter" in hostage, barricade, or sniper situations. Clarke v. Township of Mount Laurel, 815 A.2d 502 (N.J. Super. A.D. 2003).

     Police officer acted objectively reasonable in shooting and killing a 6 foot tall 180 lb 18 year-old armed with a knife who had self-inflicted cuts on himself, refused to relinquish his knife, and began to charge at the officer with it, so that the officer feared for his life. No evidence of inadequate training was produced against municipality. Easley v. Kirmsee, 235 F. Supp. 2d 945 (E.D.Wis. 2002).

First Amendment

     Federal appeals court upholds New York City's decision to bar an anti-war march through the streets near the United Nations, while allowing a stationary protest rally. Court finds that, under the circumstances of a proposed march of uncertain size, called on short notice, with unclear provisions for march organizers to attempt to control the crowd, the city's decision was a reasonable time, place, and manner regulation not violative of the First Amendment. United for Peace and Justice v. City of New York, #03-7130, 2003 U.S. App. Lexis 4526 (2nd Cir.).

     City ordinance which prohibited the sale of alcohol on premises which presented "adult entertainment" such as nude dancing did not violate the First Amendment, since it was a reasonable effort to combat undesirable "secondary" effects that could result from the combination of that form of entertainment and the consumption of alcohol. Ben's Bar, Inc. v. Village of Somerset, #01-4351, 316 F.3d 702 (7th Cir. 2003).

Freedom of Information

     Law firm representing persons before a federal grand jury tax investigation and before the IRS was not entitled under the Freedom of Information Act, 5 U.S.C. Sec. 552, to access to a memo prepared by a federal prosecutor and sent to an IRS-created public commission. Documents prepared to help an agency decision-maker in arriving at their decision are exempt from disclosure as part of a deliberative process under 5 U.S.C. Sec. 552(b)(5). Additionally, the disclosure of the limited factual material in the memorandum was not required, since it was "too inter-twined" with "evaluative decisions." Tigue v. United States Department of Justice, #01-6243, 312 F.3d 70 (2nd Cir. 2002).

     Motorists are allowed to obtain operator's manuals for radar devices used by police departments under New York Freedom of Information law. "We are not persuaded," the court stated, "that speeding motorists could use the information contained in these manuals, primarily technical specifications, operational instructions and legal advice on how best to ensure successful prosecution of speeders, to evade detection by police officers using radar equipment." Capruso v. New York State Police, 751 N.Y.S.2d 179 (A.D. 1 Dept. 2002).

Negligence: Vehicle Related

     A police officer, even though responding to an emergency, acted in "reckless disregard" of the safety of others by turning his vehicle in front of another motorist's car while attempting to cut off suspected auto thieves. Mississippi Supreme Court rules that city and officer were therefore not entitled to immunity from lawsuit for damages, especially in light of officer's failure to turn on his sirens, blue lights, or headlights. City of Jackson v. Lipsey, No. 2001-CA-01271-SCT, 834 So. 2d 687 (Miss. 2003).

Off-Duty/Color of Law

     Update: federal appeals court reverses ruling that off-duty sheriff's deputies, in making a "mass purchase" of copies of a weekly community newspaper which published an article critical of the sheriff on the night before the vote on his re-election, did not act "under color of state law" for purposes of a federal civil rights lawsuit claiming violation of First, Fourth and Fourteenth Amendment rights. Appeals court also holds that sheriff's contribution of money towards the mass purchase and expression of his approval of the action was an act under color of state law. Rossignol v. Voorhaar, #02-1326, 316 F.3d 516 (4th Cir. 2003).

Police Plaintiffs

     Police officer's work conditions were "abnormal" for purpose of a benefits recovery for psychic injury when credible gang death threats were received by both the officer and his child. City of Pittsburgh v. Logan, 810 A.2d 1185 (Pa. 2002).

Police Plaintiffs: Premises Liability

     Officer who was injured while pursuing intruders at construction site after being summoned there by private security personnel could pursue his claim for damages against general contractor and owner of site. There were genuine issues as to whether the defendants had notice of the loose construction strut that allegedly caused the officer to fall on an unlit stairway. Sanchirico v. Nickerson Terrace Redevelopment Associates, L.P., 751 N.Y.S.2d 187 (A.D. 1st Dept. 2002).

Police Plaintiffs: Vehicle Related

     Actions by driver of stolen vehicle in trying to intentionally hit an officer are ruled to be an "accident" by the New Jersey Supreme Court for purposes of an officer's claim for uninsured motorist benefits against his own vehicle insurer. Shaw v. City of Jersey City, 811 A. 2d 404 (N.J. 2002).

Privacy

     Federal statute protecting the privacy of driver's license records creates a private cause of action imposing vicarious liability on municipalities if employees or agents violate it with "apparent authority," federal trial court rules. Possible plaintiffs include not only the driver, but also other family members sharing the same address who might be subjected to stalking or harassment. Margan v. Niles, 2003 U.S. Dist. Lexis 3971 (N.D.N.Y.).

Procedural: Discovery

     Police commissioner should not be required to give a deposition in a lawsuit claiming that county police officers engaged in sexual abuse when he had no personal knowledge of the incident involved, and there were other, lower ranking officials who could provide evidence on the county's policies and procedures for addressing alleged sexual abuse by officers. Murray v. County of Suffolk, 212 F.R.D. 108 (E.D.N.Y. 2002).

Public Protection: Motoring Public

     Jurors could reasonably find that actions by state police in failing to send assistance to truck driver in backing an 18-wheeler truck loaded with overhanging poles out onto the highway did not render them liable for the deaths of two occupants of a car which collided with the truck as it backed out after sunset without a police escort. Officers believed that driver would not make such an attempt after sunset, when the driver indicated that he knew it would be illegal for him to be on the road at that time. Trial judge properly found sheriffs' office, however, 20% at fault for failing to respond to request for assistance. General damages of $400,000 to each of ten adult children of two parents killed ordered, increasing prior award of $200,000 each, based on children's close relationship with parents, and fact that the parents were killed on Mother's Day, after celebrating that day with their children. Davis v. Witt, #01-894, 831 So. 2d 1075 (La. App. 2002).

Public Protection: 911

     City liable to man who injured his back while providing requested assistance to emergency medical technicians in lifting 300-lb. neighbor from his house to an ambulance responding to a 911 call. Governmental immunity did not apply, and plaintiff was properly awarded $345,000 in damages, along with $5,000 to his wife for loss of consortium. Caillouet v. City of New Orleans, No. 2002-CA-0475, 834 So. 2d 521 (La. App. 4th Cir. 2002).

Search and Seizure: Home/Business

     Trial court properly dismissed arrestee's claims concerning supposedly false statements in search warrants for her home and business when the officer preparing the affidavit for the warrants clearly indicated that the statements in question came from a confidential informant previously shown to be reliable, and the officer had no reason to believe that these statements were false. Dahl v. Holley, #01-15089, 312 F.3d 1228 (11th Cir. 2002).

     Following execution of search warrant on home, officers acted properly in obtaining a second search warrant to seize video camera and answering machine in residence which may have contained evidence of the evening's events, which subsequently gave rise to a federal civil rights lawsuit over the execution of the first search warrant. Estate of Smith v. Marosco, 227 F. Supp. 2d 322 (E.D. Pa. 2002).

Search and Seizure: Vehicle

     Officer did not use excessive force in positioning his truck directly in front of motorist's truck, drawing his gun, and physically removing motorist from vehicle after motorist had allegedly been involved in two hit-and-run accidents and had failed to stop after a roadblock with marked police vehicles, three stop stick attempts, or after all his tires had deflated. Harrell v. Purcell, 236 F. Supp. 2d 526 (M.D.N.C. 2002).

     N.C. intermediate appeals court upholds dismissal of motorist's constitutional due process challenge to program under which he was issued a traffic citation for running a red light after an automatic camera allegedly photographed his vehicle doing so. Structural Components Int. Inc. v. City of Charlotte, No. COA02-200, 573 S.E.2d 166 (N.C. App. 2002).

Wiretapping

     Police officer who recorded a call made by another officer from a cordless phone allegedly concerning drug trafficking was not liable under the Fourth Amendment and the federal Wiretap Act, 18 U.S.C. Sec. 2510 et seq. when the law concerning recording of cordless phone conversations was not clearly established. Officer was entitled to qualified immunity because he could reasonably believe he was not violating any laws, based on his compliance with a state wiretapping statute and the existence of a state court judge's authorizing of his actions. Frierson v. Goetz, 227 F. Supp. 2d 889 (M.D. Tenn. 2002).

Applicant Rejections

     Federal appeals court affirms the dismissal of an age discrimination suit brought by a rejected police applicant. The reason he was not selected was high blood pressure; therefore, he was not medically qualified for appointment. Tyler v. D.C. Metro. Police, #02-7112, 2003 U.S. App. Lexis 2687 (Unpub. D.C. Cir. 2003).

Collective Bargaining - Duty to Bargain

     N.Y. appellate court upholds a Employment Relations Board decision that a police union was guilty of an Unfair Labor Practice for refusing to bargain with management on the one vs. two-officer patrol car issue. Buffalo PBA v. N.Y. State P.E.R.B., #TP02-01319, 752 N.Y.S.2d 498, 2002 N.Y. App. Div. Lexis 12899 (2002).

Collective Bargaining - In General

     National union files a civil action challenging the DoT directive that precludes collective bargaining rights for TSA airport security personnel. AFGE v. Loy (D.D.C. 2003).

Contracts, Consultants and Outsourcing

     An Ohio city attorney, who was dismissed without cause, cannot collect the remainder of a three-year contractual fee. A lawyer has an ethical obligation not to bill for services not performed. City of Moraine v. Lewis, #19402, 784 N.E.2d 774, 2003 Ohio 460, 2003 Ohio App. Lexis 430 (2003).

Criminal Liability

     Federal appeals court affirms the conviction of a police K9 officer for misusing her dog to attack a suspect. Officer was sentenced to 120 months imprisonment. U.S. v. Mohr, #01-5002, 318 F.3d 613, 2003 U.S. App. Lexis 1783 (4th Cir. 2003).

Disciplinary Appeals & Challenges- In General

     Illinois appellate court rejects a damage suit against a urine-testing lab that destroyed the plaintiff's specimens, which they had reported as positive for cocaine use. The plaintiff, a terminated police officer, fully litigated that issue in his disciplinary hearing, and the doctrines of res judicata and collateral estoppel apply. Bagnola v. SmithKline Beecham Labs., No. 1-00-0224, 333 Ill.App.3d 711, 776 N.E.2d 730, 2002 Ill. App. Lexis 750 (2002).

Disciplinary Interviews - Weingarten Rights

     In a non-published decision, a California appeals court holds that if Weingarten rights apply to non-unionized public employees, those rights are not retroactive before July 10, 2000. Traina v. City of Fontana, #E031851, 2003 Cal. App. Unpub. Lexis 1623 (4th Dist. 2003).

Disciplinary Punishment - In General

     Arbitrator sustains the termination of a state worker with 28 years of service who had frequently visited "violent"  and bondage porn sites while at work, using a state computer.  State of Minn. Dept. of Admin. and AFSCME C-6, Case 302-PA-1156, 117 LA (BNA) 1569 (Neigh, 2002).

     Arbitrator sustains the charges that an off-duty police officer assaulted his brother and cursed in a public place. The punishment was reduced from termination to a 295-day suspension. City of Fort Worth and Individual Grievant, AAA Case No. 71-390-00207-2, 117 LA (BNA) 1621 (Goodman, 2002).

     An appeals court in Pennsylvania concludes that an arbitrator properly reduced a termination to a disciplinary suspension; a female jail clerk had a copy of Playgirl magazine in her desk drawer. Bedford County v. Penn. Soc. Servs. Union L-668, #1621 C.D. 2002, 814 A.2d 866, 2003 Pa. Commw. Lexis 24, 171 LRRM (BNA) 3038 (1/13/03).

     Arbitrator reduces the penalty, from termination to a 30-day suspension, imposed on a contract Air Force facility security officer who failed to have his firearms license renewed within the deadline time period. Pyramid Services and IBOT L-986, 117 LA (BNA) 1687 (Cloke, 2002).

Disciplinary Procedures - In General

     Arbitrator declines to enforce a clause requiring the parties to submit a list of witnesses seven days before the hearing. Fed. Bur. of Prisons and AFGE L-4051, FMCS Case #02/06738, 117 LA (BNA) 1723 (Oberdank, 2002).

     Federal appeals court upholds a trial court order barring a party from introducing evidence because of a failure to comply with discovery demands.Ware v. Rodale Press, #02-1533, 2003 U.S. App. Lexis 3722 (3rd Cir. 2003). 

Discovery, Publicity and Media Rights

     Police officers' Assn. loses suit to uncover the public defender's database of police officers. It is not a "public record," and if it is, it would be exempt because the public interest in nondisclosure clearly outweighs the public interest in disclosure. Coronado Police Officers Assn. v. Carroll, #D039198, 2003 Cal. App. Lexis 331 (4th Dist. 2003).

Fair Labor Standards Act - Constitutionality

     Iowa Dept. of Public Safety, which had stopped paying overtime, has lost its appeal to the U.S. Supreme Court that the FLSA cannot be constitutionally applied to state governments. Eight other states filed a brief supporting Iowa's unsuccessful appeal. Anthony v. Iowa, #223/99-0515, 632 N.W.2d 897, 2001 Iowa Sup. Lexis 152; cert. den. #01-790, 534 U.S. 1129, 122 S.Ct. 1068 (2002).

Fair Labor Stds. Act - Exemptions

     Federal appeals court upholds an Office of Personnel Management definition of the executive exemption to the Fair Labor Standards Act. Billings v. U.S., #02-5069, 2003 U.S. App. Lexis 4547 (Fed Cir. 2003).

Firearms - Restrictions on Wearing

     Appellate court in New York affirms an arbitration award that process servers in the sheriff's dept. must be provided with firearms and training. Matter of Arb. Monroe Co. Dep. Sheriff's Assn. and Monroe Co. Sheriff, #Ca 02-00998, 752 N.Y.S.2d 457, 2002 N.Y. App.Div. Lexis 12887 (12-30-2002).

First Amendment Related

     Federal appeals court overturns a District Court order that the CIA was required to release classified matter to a former employee that sued the agency for supposedly misclassifying as his proposed book as containing state secrets. Stillman v. C.I.A., #02-5234, 319 F.3d 546, 2003 U.S. App. Lexis 3437 (D.C. Cir. 2003).

Handicap Laws - Accommodation - Teleworking

     Seventh Circuit rejects an employee's ADA "reasonable accommodation" for "a home office in its entirety." Rauen v. U.S. Tobacco, #01-3973, 319 F.3d 891, 13 AD Cases (BNA) 1797, 2003 U.S. App. Lexis 2211 (7th Cir. 2003) .

Hairstyle and Appearance Regulations

     Reacting to complaints from coworkers about offensive tattoos, and from superior officers about bizarre body piercings and dental ornamentation, the U.S. Navy has revised its grooming standards for uniformed and civilian personnel. Ref: NAVADMIN 021-03 (Jan. 2003) and Army regulation AR 670-1.

Homosexual & Transgendered Employee Rights

     Noting that gender dysphoric persons who have completed sexual reassignment surgery are "an under-represented group" in policing, the London Metropolitan Police have recruited their first transsexual officer. The 39-year-old male officer, who was born a female, will not be allowed to conduct searches because of a fear of lawsuits. Source: Evening Standard (UK) 02/18/2003.

Impasse Arbitration

     Independent arbitrator opts for the police union's benefits demand, which encouraged officers to stay with the agency -- which was suffering from a high turnover rate. Town of Union City and L-144, I.U.P.A., FMCS Case No. 02/12456, 117 LA (BNA) 1544 (Woolf, 2002).

Injuries to Employees

     Louisiana appeals court allows a deputy to sue for her slip-and-fall injuries because officials knew the floor was dangerous when wet, and the sheriff's office was not covered by worker's comp. insurance. Gorton v. Ouachita Parish Police Jury, #35,432-CA, 814 So.2d 95, 2002 La. App. Lexis 920 (La.App. 2002).

Occupational Safety & Disease

     H.R. 536, the "Fairness for State and Local Workers Act," has been introduced by Rep. Robert E. Andrews (R-NJ); it would amend the Occupational Safety and Health Act of 1970 to extend federal job health and safety coverage for all state and local government employees. Currently OSHA applies to public sector employees in only 25 of the 50 states.

Inefficiency, Performance Standards and Incompetence

     Arbitrator reinstates a corporal who was fired because of very minor actions. The grievant also was president of the FOP and had cost the city substantial amounts for the arbitration actions he initiated. City of Coweta, Okla. and FOP L-192, FMCS Case#02/11822-8, 117 LA (BNA) 1547 (Crow, 2002).

     Arbitrator upholds management in giving a substandard evaluation to a crime lab specialist, rejecting a union demand that management must have written performance policy. San Bernadino Co. Sheriff and Public Employees Assn., 117 LA (BNA) 1588 (Grabuskie, 2002).

Privacy Rights

     A federal appeals court has refused to dismiss a suit, brought under the Privacy and Rehabilitation Acts, by a postal worker whose HIV-positive status was revealed to coworkers after he requested medical leave. Doe v. U.S. Postal Service, #01-5395, 317 F.3d 339, 13 AD Cases (BNA) 1801, 2003 U.S. App. Lexis 3277 (D.C.Cir. 2003).

Race Discrimination - In General

     Federal court rejects a promotion discrimination suit filed by a black lawyer in the Justice Dept. Although he characterized the position sought as a "promotion," it was a lateral movement with the same pay and benefits. "...a plaintiff who is ... denied a lateral transfer ... does not suffer an actionable injury unless there are some other materially adverse consequences ..." Stewart v. Ashcroft, 211 F.Supp.2d 166, 2002 U.S. Dist. Lexis 13548, 90 FEP Cases (BNA) 611 (D.D.C. 2002).

Religious Discrimination

     Second Circuit finds that a Jewish deputy inspector of police sufficiently alleged promotional discrimination because of his religion and his public criticism of pro-Catholic bias in the agency; the appellate panel overturned a lower court order dismissing his claims. Mandell v. County of Suffolk, #01-7729, 316 F.3d 368, 2003 U.S. App. Lexis 650, 90 FEP Cases (BNA) 1328 (2nd Cir. 2003).

Residency Requirements

     New York's highest court invalidates a residency requirement for a police officer examination that was established in the official exam notice. A civil service authority must hold a hearing before adopting a residency requirement. Trager v. Kampe, #2 No. 1, 2003 N.Y. Lexis 182 (N.Y. 2003).

Sexual Harassment - In General

     California appeals court holds that a male executive's order to fire a female employee because she failed to meet his personal standards for sexual attractiveness is an act of sex discrimination, when similar standards are not applied to men. A subordinate's refusal to carry out that order was a protected activity, and she can recover damages for retaliation, including an emotional distress claim, which is not barred by workers' compensation laws. Yanowitz v. L'Oreal, #A095474, 2003 Cal. App. Lexis 342 (1st Dist. 2003).

     Federal appeals court rejects the argument that a state agency is immune, under the 11th Amendment, from a Title VII sexual harassment claim. Downing v. Bd. of Tr. of Univ. of Alabama, #00-10481, 321 F.3d 1017, 2003 U.S. App. Lexis 2697 (11th Cir. 2003).

     A prison warden's preferential treatment of his paramours was not pervasive harassment and did not altered 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, 90 FEP Cases (BNA) 1651 (2003).

Sexual Harassment - Retaliation

     Federal court finds valid reasons to reject the wrongful termination complaints of two women correctional officers, but awards them each $150,000 in compensatory damages and $20,000 in punitive damages for harassment and retaliation. Brissette v. Franklin Co. Sheriff's Office, #98-30062, 235 F.Supp.2d 63, 2003 U.S. Dist. Lexis 95, 90 FEP Cases (BNA) 1295 (D. Mass. 2003).

Sexual Harassment - Indemnity

     Illinois counties are required by statute to indemnify sheriffs for judgments and settlements against them for all official acts, and a county was required to pay a $500,000 consent judgment for sexual harassment. Carver v. Sheriff of La Salle County, #91108, 91 FEP Cases (BNA) 29, 2003 Ill. Lexis 13 (Ill. 2003). Also see 243 F.3d 379, 2001 U.S. App. Lexis 3934 (7th Cir. Ill. 2001).

Stress Related Claims and Defenses

     Hawaii's Supreme Court upholds a disability claim by a firefighter who suffered emotional distress because of what he perceived to be a flawed promotional process, and a threat of retaliation by the chief when he appealed the outcome.Davenport v. C&C of Honolulu, #23141, 100 Haw. 481, 60 P.3d 882, 2002 Haw. Lexis 850 (Haw. 2002; released 2003).

Union and Associational Activity

     Federal court refuses to dismiss a damage suit against the village and fire chief that alleges the denial of a promotion and other retaliation because of the plaintiff's long-term efforts to unionize and collectively bargain. Cunningham v. Vil. of Mount Prospect, #02C4196, 2002 U.S. Dist. Lexis 22772 (N.D. Ill. 2002).

Access to Courts/Legal Info

     Prison "mailbox" rule applied to prisoner's federal civil rights complaint concerning his alleged assault in a county jail, so that it was considered filed in a timely manner when it was placed in the prison mail system on the last day of the statute of limitations, despite the fact that it was not received by the federal trial court until five days after the statute of limitations expired. Sulik v. Taney County, Missouri, No. 02-1397 316 F.3d 813 (8th Cir. 2003).

Defenses: Absolute Immunity

     Prison disciplinary hearing officers were protected from inmate's federal civil rights lawsuit for damages by absolute judicial immunity for actions they took in the course of their official duties. Clemons v. Cook, No. 02-1724, 52 Fed. Appx. 762 (6th Cir. 2002).

Disability Discrimination: Prisoners

     Attorneys' fee award limitations contained in Prison Litigation Reform Act did not apply to a fee award to prevailing plaintiff prisoners under the attorneys' fee sections of the Americans with Disabilities Act (ADA) and Rehabilitation Act. Prevailing plaintiffs in disability discrimination lawsuit against California correctional officials were also entitled to fees for work their lawyers did in separate litigation defending a judgment on a similar issue from another federal appeals court on review before the U.S. Supreme Court. Armstrong v. Davis, #01-15779, 318 F.3d 965 (9th Cir. 2003).

Drugs and Drug Screening

     Any questions regarding the chain of custody of the prisoner's urine samples, which was the basis for the finding that he violated prison disciplinary rules prohibiting the use of controlled substances twice, were sufficiently explained in the course of the testimony presented at the disciplinary hearing. The prisoner's claim that the hearing officer was biased was similarly without merit. Montalbo v. Selsky, 752 N.Y.S.2d 920 (A.D. 2003).

Emotional Distress

     California prisoner could pursue claims for intentional infliction of emotional distress and negligence against state and state employees for diagnosing him as having tuberculosis when he was actually suffering from lung cancer. State of California v. Superior Court (Bodde), 130 Cal. Rptr. 2d 94 (Cal. App. 5th Dist. 2003).

Employment Issues

     Security guard fired by Mississippi Department of Corrections had the burden on appeal of showing that conduct which was the basis for his termination, assaulting and injuring several inmates during a fight and falsifying records, had not occurred. Decision by Employee Appeals Board which reinstated guard was reversed as "arbitrary and capricious" when there was evidence that he took a handcuffed prisoner into an ice room and beat him, as well as a fellow officer's observation of him "driving" another prisoner's head into a wall. Mississippi Department of Corrections v. Harris, No. 2001-CC-004223-COA, 831 So. 2d 1190 (Miss. App. 2002).

     Arbitrator could properly find, under the terms of a collective bargaining agreement, that the firing of a clerk-typist from a position at a county jail for bringing Playgirl magazine to work was not supported by just cause after determining that her conduct was not willfully in violation of a law prohibiting the bringing of "obscene" materials into the jail and the firing was simply for bringing the magazine to work, regardless of any explanation she had. The arbitrator exceeded his authority, however, in ordering that the employee be assigned to a job elsewhere than the jail, since the county had the ability to direct where she would work. County of Bedford v. Pennsylvania Social Services Union, SEIU, AFL-CIO, Local 668, 814 A.2d 866 (Pa. Cmwlth 2003).

Exercise

     Correctional officials denial of prisoner's access to yard exercise and telephone access for approximately one month when he was classified as having refused a job assignment was not a violation of his rights. After prisoner pursued the proper avenues to get himself classified as medically unable to work, his access to yard exercise and telephone access was restored. Ziegler v. Martin, No. 01-2677, 47 Fed. Appx. 336 (6th Cir. 2002).

First Amendment

     Ban on possession of electric or electronic instruments in federal prisons (except for use in religious activities) did not violate prisoners' First Amendment rights. Bureau of Prisons acted reasonably in interpreting a statute barring the use of appropriated federal funds "for use or possession" of such instruments as allowing a prohibition on the possession of the items. Kimberline v. U.S. Department of Justice, No. 01-5387, 318 F.3d 228 (D.C. Cir. 2003).

Frivolous Lawsuits

     Trial court should have set forth, in its decision, specific factual and legal grounds for the dismissal of a prisoner's lawsuit against a correctional officer who testified before the state court of claims that the prisoner's shoes were not actually taken from him. At the same time, given that the prisoner ultimately received damages from the court of claims for his shoes, the lawsuit was properly dismissed as frivolous, and the trial court's failure to set forth its reasons did not require further proceedings under the circumstances. Ward v. Cliver, No. 30493, 575 S.E.2d 263 (W. Va. 2002).

Inmate Funds

     Prisoner's rights were not violated by the withdrawal of all funds from his inmate trust account when all withdrawals were pursuant to court orders to pay debts he incurred filing multiple legal actions. Withdrawal of funds did not interfere with his access to the courts, nor did it make him a "slave," as he subsequently demonstrated by quitting his job and remaining confined to his cell during working hours. Erdman v. Martin, No. 02-1302, 52 Fed. Appx. 801 (6th Cir. 2002).

Medical Care

     Diabetic prisoner did not have to present expert affidavit to pursue a New Jersey state law medical malpractice claim based on a stroke he suffered after prison medical authorities failed to provide him with insulin within twenty-one hours of his incarceration. No specialized knowledge was required for a jury to determine whether medical personnel acted negligently. Trial court also improperly granted summary judgment on prisoner's federal civil rights claim for deliberate indifference to his serious medical needs. Natale v. Camden County Correctional Facility, No. 01-3449, 318 F.3d 575 (3rd Cir. 2003).

     Forcible administration of anti-psychotic medication on twenty-two occasions did not violate the rights of paranoid schizophrenic prisoner when it was only done in emergency situations when he exhibited behavior that was dangerous to himself or others. Dancy v. Gee, No. 00-7482, 51 Fed. Appx. 906 (4th Cir. 2002).

     Prison officials did not violate prisoner's constitutional rights by requiring that he submit to a psychological evaluation before receiving medical treatment for hepatitis C, since there was evidence that the treatment could result in "severe psychological side effects" which might place prison staff members, other prisoners, and the inmate himself in danger. Accordingly, there was a legitimate penological interest in compelling the submission to evaluation which overrode the prisoner's right to privacy in his medical information. Iseley v. Dragovich, 236 F. Supp. 2d 472 (E.D. Pa. 2002).

     Jailer and sheriff were not negligent in addressing the needs of a hemophiliac detainee who experienced nose bleeds, since he was immediately taken to a hospital when his nose began to bleed rapidly. Prisoner's evidence also did not show negligence by medical providers. Summey v. Barker, No. COA02-13, 573 S.E.2d 534 (N.C. App. 2002).

     Providing inmate who tested positive for tuberculosis only a six months regimen of a preventative drug, rather than the allegedly preferred nine months, did not constitute deliberate indifference to a serious medical need, but only showed a difference of opinion as to the proper treatment. Prisoner also failed to show that prison overcrowding caused him to contract the disease. Prison medical personnel did not show deliberate indifference by failing to respond to "rumors" of tuberculosis cases contained in prisoner grievances, in the absence of actual evidence of infection. Stewart v. Taft, 235 F. Supp. 2d 763 (N.D. Ohio 2002).

Prison Conditions:

     Prisoner failed to show that her double-celling violated her Eighth Amendment rights when all she managed to demonstrate was that it made her "uncomfortable." Fuller v. Commissioner of Correction, No. 22084, 815 A.2d 208 (Conn. App. 2003).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner's lawsuit against prison officials for failing to protect him against assault by other inmates should not have been dismissed for failure to exhaust administrative remedies despite the fact that he never filed an administrative grievance, when prisoner was told by officials that he had to "wait" until their "investigation" was finished, and he was not informed, months later, that it had ended. Brown v. Croak, No. 01-1207, 312 F.3d 109 (3rd Cir. 2002).

     Prisoner's lawsuit concerning permanent restrictions on his use of the phone should be dismissed when he failed to comply with the requirements of the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e, that he exhaust available administrative remedies before filing suit. Prisoner filed three administrative grievances concerning restrictions on his phone use, but only pursued appeals on two of the grievances. Smeltzer v. Hook, 235 F. Supp. 2d 736 (W.D. Mich. 2002).

     Prisoner complied adequately with the exhaustion of administrative remedies requirement when he submitted a grievance concerning his alleged physical mistreatment by correctional officers which was not responded to in any way. Abney v. County of Nassau, 237 F. Supp. 2d 278 (E.D.N.Y. 2002).

     Informal complaints that a prisoner made to the city's inspector general, such as leaving telephone messages concerning his alleged inadequate medical treatment, inadequate heat in the city correctional facility, etc., did not satisfy the legal requirement that he exhaust available administrative remedies before pursuing a federal civil rights lawsuit. To allow him to bypass formal administrative procedures "would obviate the purpose for which the procedures were enacted." Berry v. Kerik, 237 F. Supp. 2d 450 (S.D.N.Y. 2002).

Prisoner Assault: By Officer

     Prisoner convicted by military general court martial was not subjected to cruel and unusual punishment in violation of his Eighth Amendment rights during his confinement after trial when a military guard allegedly hit or squeezed his left testicle during a frisk for weapons. While the guard's action was rough enough to cause a painful and permanent injury to his testicle, satisfying the "objective" component of the legal test for excessive use of force, there was an absence of evidence that the guard intentionally inflicted the injury. "This was a onetime, accidental injury," the appeals court concluded, for which the prisoner "received timely and appropriate medical treatment." United States v. Roth, Army 9600441, 57 Military Justice Reporter 740 (Army Ct. Crim. App. 2002).

Prisoner Assault: By Inmates

     Prisoner did not provide evidence that supervisors of prison guards had any awareness of a particular risk of harm to him from assault by other inmates. While some of his injuries and "predicaments" were documented in prison logbooks, there was no indication that the supervisors were obligated to review these logbooks, or that it was their actual practice to do so. One supervisor's transfer of the plaintiff prisoner to a different cell tier instead of to protective custody did not constitute "deliberate indifference" to the risk of harm, since the prisoner could not show that the supervisor's belief that a different tier would be more secure was unreasonable when plaintiff prisoner did not know the identity of the other inmates who attacked him, what their motive was, or any possible gang affiliation. Boyce v. Moore, #01-2809, 314 F.3d 884 (7th Cir. 2002).

Prisoner Discipline

     Disciplinary process that found inmate guilty of possessing anti-depressant drugs not prescribed for him by the medical staff did not violate his due process rights. Prisoner was provided written notice of the charges, and he waived the opportunities to present witnesses or to be represented during the hearing. Allen v. Reese, #02-2337, 52 Fed. Appx. 7 (8th Cir. 2002).

     Warden of West Virginia prison lacked authority to prohibit prisoners from applying for the restoration of good time credit until two years preceding their discharge date. Court also finds that failure to provide prisoners charged with disciplinary offenses with detailed notices of formal charges within a reasonable period of time would violate due process rights. State Ex Rel. Williams v. Dept. of Military Affairs, No. 30407, 573 S.E.2d 1 (W. Va. 2002).

     Federal appeals court rules that a parolee who had fully served a period of additional imprisonment that had been caused by the loss of good time credits because of prison discipline could pursue a federal civil rights claim for damages despite not having first invalidating his discipline, since any petition for habeas relief would be dismissed as moot. Appeals court holds that justice required making an action for money damages available under the circumstances, despite the holding in Heck v. Humphrey, 512 U.S. 477 (1994), since the prisoner in this case was released from custody while his lawsuit was pending. Nonnette v. Small, No. 00-55702 (9th Cir. 2002).

     Prisoner provided no evidentiary support for his claim that the misbehavior report concerning his "disruptively loud" telephone conversation and his refusal to obey orders to desist was "fabricated" in retaliation for prior conflicts with a correctional officer. Discipline of prisoner on the basis of misbehavior report is upheld. Crawford v. Girdich, 752 N.Y.S.2d 919 (A.D. 2003).

     A punishment of loss of 180 days of good time credit and transfer to another facility was not "grossly disproportionate" to the severity of his offense of threatening a prison staff member and therefore did not violate his Eighth Amendment rights. Higgason v. Hanks, No. 01-4022, 54 Fed. Appx. 448 (7th Cir. 2002).

Prisoner Suicide

     Correctional officials' interest in preventing suicide and preserving life, as well as maintaining order and discipline, outweighed a hunger-striking prisoner's right to privacy, resulting in a right to force-feed the prisoner. People ex. Rel. Department of Corrections v. Millard, Nos. 4-01-0857, 782 N.E.2d 966 (Ill. App. 2003).

     Estate of manic-depressive schizophrenic prisoner with prior suicidal tendencies who committed suicide in his cell when left unattended reaches $300,000 settlement on federal civil rights lawsuit against sheriff and county. The plaintiff claimed that the decedent's need for psychiatric treatment or counseling was ignored, while the defendants argued that the decedent did not indicate a need for such care, but instead misled jail personnel about his medical history. Estate of Price v. Black Hawk County, No. 00-CV-2008 (March 21, 2003, N.D. Iowa), reported in The National Law Journal, p. B2 (April 7, 2003).

Procedural: Discovery

     Prisoner's right to disclosure of exculpatory materials was not violated in a prison disciplinary proceeding against him for attempting to procure drugs when he was not allowed to view a security videotape which showed the alleged transport of the drugs between prisoners' cells. The evidence of the tape was not withheld from the fact-finders, and allowing the inmate access could jeopardize prison security by disclosing the location of the camera, which could result in the avoidance of detection in the future. Herrera v. Davis, No. 02-2186, 54 Fed. Appx. 861 (7th Cir. 2002).

Religion

     Federal prison did not violate the rights of a Jewish inmate by requiring that he fill out and submit a standard form in order to receive a kosher diet. Prison officials were also entitled to qualified immunity from liability, particularly as they were reasonably relying on a federal regulation governing requests for special religious diets. Resnick v. Adams, No. 01-56710, 317 F.3d 1056 (9th Cir. 2003).

     Prisoner seeking to practice religious Taoism was not likely to prevail on his claims that he had been denied the opportunity to do so or denied equal opportunities with those provided to prisoners of other religions. Plaintiff prisoner had failed to cooperate with prison officials' attempts to determine what the "essential practices" of his religion were. Adams v. Stanley, 237 F. Supp. 2d 136 (D.N.H. 2003).

     Revocation of Rastafarian prisoner's supervised release after he failed drug urinalysis tests and admitted smoking marijuana was not violative of his right to freely exercise his religion under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. Sec. 2000bb, since the government had a compelling governmental interest in preventing drug abuse. Additionally, demanding that a convicted felon on parole abstain from marijuana use is a legitimately restrictive means for safeguarding this interest. Accordingly, even under the most restrictive test, the prisoner had no claim for violation of his rights. United States of America v. Israel, No. 02-1864, 317 F.3d 768 (7th Cir. 2003).

     Prison chaplain was not entitled to qualified immunity from liability for a civil rights violation for allegedly intentionally interfering with an Orthodox Chassidic Jewish prisoner's request to celebrate the religious holiday of Sukkot by being allowed to eat his meals under a religious canopy or booth known as a Sukka. The chaplain allegedly intentionally ignored Kansas Department of Corrections manuals and other information describing Sukkot requirements, suggesting that the Jewish prisoners could adequately meet the religious observance by wearing a napkin on their head, and is alleged to have been motivated by personal animus against Jewish prisoners. Wares v. VanBebber, 231 F. Supp. 2d 1120 (D. Kan. 2002).

Segregation: Disciplinary

     Prisoner's placement in segregation for three days after being found guilty of a disciplinary charge of making threatening statements did not implicate a protected liberty interest, since it was not an "atypical and significant hardship." No basis found for prisoner's race discrimination claim. Adams v. Jones, No. 02-5472, 52 Fed. Appx. 744 (6th Cir. 2002).

Sexual Assault

     City liable under state law for alleged rape of 16-year-old female juvenile doing court mandated community service by inmate-trustee working for the city. Trial court properly assessed city as 70% negligent and inmate-trustee as 30% at fault when city had an obligation to supervise the inmate-trustee, but knowingly allowed the teenage victim to work with him in a situation where they were left alone. City liable for 70% of $153,365.64 general damage award, but no liability found for damages or attorneys fees under 42 U.S.C. Sec. 1983 and 1988. Ashmore v. Hilton, No. 02-816, 834 So. 2d 1131 (La. App. 2002), rehearing denied (2003).

Sexual Offender Programs

     New Hampshire Department of Corrections' sex offenders program did not violate prisoners' Fifth Amendment rights against self-incrimination by making them disclose their past histories of sexual misconduct as a condition of participation in the program. The reduced likelihood of parole for refusal to participate was not a sufficient penalty to constitute "compelling" incriminating statements, and the result was not altered by the state's failure to provide immunity from prosecution for statements made in participating in the program. Ainsworth v. Stanley, #00-1678, 317 F.3d 1 (1st Cir. 2002).

Work/Education Programs

     Exclusion of violent offenders, including those convicted of armed robbery, from participation in "boot camp" program which provided an opportunity for early release after engaging in strenuous exercise, manual labor, substance abuse treatment, and counseling, was not a violation of either equal protection or due process of law. Instead, it was rationally related to a legitimate penal objective. "Violent offenders" are not a "suspect" class, and there was no showing that the distinction was intended to result in racial discrimination. Jones-El v. Grady, No. 02-2406, 54 Fed. Appx. 856 (7th Cir. 2002).