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

Administrative Liability: Training

     County could not be held liable for officer's alleged improper use of neck restraint which broke arrestee's neck, based on "fairly particularized" training provided on the use of neck restraints and other defense tactics. Evidence was insufficient to show that the county disregarded a known risk of harm or failed to provide adequate training on this subject. Fultz v. Whittaker, 261 F. Supp. 2d 767 (W.D. Ky. 2003).

Defenses: Collateral Estoppel

     A finding at an arrestee's parole revocation hearing that he had struck a police officer did not have a "collateral estoppel" effect barring his lawsuit against the officer for excessive use of force, since the officer still could possibly be found to have used excessive force whether or not the arrestee struck him. Curry v. City of Syracuse, No. 01-9211, 316 F.3d 324 (2nd Cir. 2003).

Defenses: Qualified Immunity

     Officers were not entitled to qualified immunity for arresting a woman for either possession of stolen property or "obstruction" merely on the basis that she had a diamond ring and wanted to walk away to call her husband when they told her they thought it was stolen. Officers had no information other than an unsubstantiated statement from a "local felon" admittedly involved in the theft who had also admittedly lied to them earlier in the investigation. Thompson v. Wagner, No. 02-1918, 319 F.3d 931 (7th Cir. 2003).

Dogs

     Officers who themselves exercised no authority over police dog who was alleged to have repeatedly bitten unarmed suspect wearing only shorts could not be held liable, despite being present, allegedly observing dog biting suspect, and taking no action to restrain the dog. Further proceedings will occur concerning excessive force claims against the officer who allegedly unleashed the dog to subdue the plaintiff. Hinds v. Mohr, No. 02-6320, 56 Fed. Appx. 591 (4th Cir. 2003).

Domestic Violence

     Police officers had exigent circumstances justifying a warrantless entry into the home of a 911 caller and her fiance when the dispatcher labeled the call as involving a "cutting or stabbing," and the fiance answered the door with blood on his legs and boxer shorts, and the caller was not then visible. Alleged handcuffing of caller for one minute while officers inspected her bruises was not proven, and plaintiff could not identify which officer purportedly did so. Probable cause existed for arrest of fiance for domestic violence based on bruises on woman caller. Thacker v. City of Columbus, No. 01-4097, 328 F.3d 244 (6th Cir. 2003).

False Arrest/Imprisonment: No Warrant

     Officer acted in an objectively unreasonable manner in placing a man under arrest merely for being present at a drug raid on the basis of unsubstantiated evidence that he had arrived there by riding in a truck owned by someone else in which drug paraphernalia had been found. He was therefore not entitled to qualified immunity, although supervising officer on drug raid was, since his alleged approval of the arrest was not based on anything other than a brief conversation with the arresting officer. Evett v. Detntff, No. 02-40686, 330 F.3d 681 (5th Cir. 2003).

     Officers had probable cause to arrest wife of police chief based on statements of witnesses that she had intentionally accelerated her car towards them and that they believed she had tried to run them down. The fact that the complainants had been involved in employment litigation with the police department, her husband, or the arrestee did not alter the result, nor did the failure of the investigating officer to interview the arrestee or the police chief, a passenger in the vehicle during one of the two incidents. Herman v. City of Millville, #02-2040, 66 Fed. Appx. 363 (3rd Cir. 2003).

     Officers could have reasonably believed that they had probable cause to arrest a golfer for a rape that took place in the area despite the fact that the victim's relatively "generic" description of her attacker did not identify all of his "distinctive" facial features. They were therefore entitled to qualified immunity from liability. Wrubel v. Bouchard, #02-1730, 65 Fed. Appx. 933 (6th Cir. 2003).

     Wildlife officers did not initially have probable cause to arrest farmer during their investigation of the alleged illegal killing of a deer out of season on his land, nor were they entitled to qualified immunity for doing so. They knew that they had no right to simply enter onto private property and demand access, they had no search warrant to look for any parts of the deer, and the reported crime they were investigating had been completed so that no immediate action was required. Johnson v. Wolgemuth, 257 F. Supp. 2d 1013 (S.D. Ohio 2003).

     Deputies did not have probable cause to arrest motorist for either disorderly conduct or failure to identify himself. They were not entitled to qualified immunity from liability, as no reasonable officer could believe that motorist's actions in simply asking "what for?" as he reached for his driver's license in responding to their request gave the officers grounds for an arrest. Earles v. Perkins, No. 49A02-0206-CV-484, 788 N.E.2d 1260 (Ind. App. 2003).

False Arrest/Imprisonment: Warrant

     Officer was not entitled to qualified immunity from liability for alleged false arrest when it appeared that several statements made in connection with an application for an arrest warrant were deliberately or recklessly false, including that the drugs were found in a room where the apartment tenant's girlfriend slept, when they were actually found in a room used in an office. Holmes v. Kucynda, No. 02-11408, 321 F.3d 1069 (11th Cir. 2003).

     There was no evidence to show that an officer deliberately omitted from an application for an arrest warrant the purported fact that the narcotics seized during a prior search of the suspect's home had been destroyed, that the drugs actually had already been destroyed at the time that the warrant was applied for, or, if they had, that the officer knew this. Defelice v. Ingrassia, #02-7758, 66 Fed. Appx. 240 (2nd Cir. 2003).

     Officers acted in an objectively reasonable manner by seeking and obtaining an arrest warrant for a teacher on charges of assaulting elementary school students, based on statements obtained from seven different students which corroborated each other's stories concerning the alleged physical assaults, as well as a school nurse's report documenting student physical injuries. Given these statements, a magistrate would have issued an arrest warrant even if other, allegedly exculpatory information excluded had been recited. Crone v. Connelly, No. 22156, 813 A.2d 1084 (Conn. App. 2003).

Family Relationships

     State social workers and other employees violated the Fourth Amendment in removing a 12 year-old child from his parents' home without a warrant and the plaintiffs adequately stated a Fourteenth Amendment due process claim for deprivation of a constitutionally protected liberty interest in their family relationship. Warrantless entry into home to investigate the possibility that the child was a victim of Munchausen Syndrome by Proxy (MSBP), however, did not violate clearly established law because the defendants could have believed that exigent circumstances existed justifying the entry, based on the possibility of harm to the child. Further proceedings were ordered to determine if Utah state statutes providing only post-deprivation remedies in child removals entitled the defendants to qualified immunity for removing the child. Roska Ex Rel. Roska v. Peterson, #01-4057, 328 F.3d 1230 (10th Cir. 2003).

Firearms Related: Intentional Use

     Jury's verdict for defendant police officer in case accusing him of excessive force in shooting fleeing suspect in the back was inconsistent in finding that the officer used excessive force, but was nevertheless entitled to qualified immunity. Appeals court finds that jury was allowed to decide issue of qualified immunity without being given adequate instructions on how to do so. Stephenson v. Doe, #00-93, 332 F.3d 68 (2nd Cir. 2003).

Firearms: Licenses and Regulations

     Law enforcement officials' alleged failure to return firearms that were seized at the time of an arrest following the dismissal of criminal charges did not state a federal civil rights claim for violation of the Second Amendment. This amendment only protects weapon possession "reasonably related to the "preservation or efficiency of a well-regulated militia," and "does not confer an absolute and unfettered right on the plaintiff to bear arms." Blackburn v. Jansen, 241 F. Supp. 2d 1047 (D. Neb. 2003).

First Amendment

     Federal appeals court grants judgment as a matter of law to African-American high school basketball coach arrested by police officer solely for calling him a "son of a bitch." Arrestee's statement did not constitute "fighting words," and were therefore protected by the First Amendment. Officer also did not, prior to the arrest, have reasonable suspicion sufficient to detain the coach for an investigatory stop on the basis of motel clerk's report of his "suspicious" behavior of appearing nervous while drinking coffee and looking at newspapers in motel office. Johnson v. Campbell, No. 02-3580, 332 F.3d 199 (3rd Cir. 2003).

     Boat dealer failed to show that environmental police officer, (employed by the division of environmental law enforcement of the state Department of Fisheries, Wildlife and Environmental Law Enforcement, subsequently renamed the Department of Fish and Game), seized his dealer "certificate of number" and two number placards from vessels the dealer was operating in retaliation for his exercise of his First Amendment rights in expressing opposition to certain actions of the zoning board of appeals and harbormaster. The dealer appeared to be in violation of a licensing statute and the officer was unaware of the dealer's disputes with the zoning board and harbormaster. Baker v. Gray, 785 N.E.2d 395 (Mass. App. 2003).

Freedom of Information

     Documents in the FBI's Central Records System concerning the requester were exempt from disclosure under the Freedom of Information Act under an exemption for information compiled for law enforcement purpose, 5 U.S.C. Sec. 552(b)(7)(c). The disclosure of the information sought could cause harassment, or even bodily harm, to third parties, special agents, and local law enforcement personnel involved in the investigation and prosecution of the requester. Additionally, in instances where members of the public could draw an "adverse inference" from the mere fact that an individual is mentioned in a criminal law enforcement agency's investigative files, the agency may respond to a freedom of information request without confirming or denying the existence of the document sought. Taylor v. U.S. Department of Justice, 257 F. Supp. 2d 101 (D.D.C. 2003).

Governmental Liability: Policy/Custom

     Owner of food distribution business failed to present allegations sufficient to establish a claim that an allegedly unlawful warrantless search of the business was caused by a police department policy or custom, as required for municipal liability, when the complaint failed to point to anything other than the search at issue. Chin v. City of Baltimore, 241 F. Supp. 2d 546 (D. Md. 2003).

     Failure to show that alleged false arrest and excessive use of force by deputies was caused by policies or customs of sheriff's office amounting to inadequate training and supervision precluded claims for liability against the sheriff in his official capacity. The sheriff could also not be held liable personally when he played no personal role in the incidents at issue. Seegars v. Adcox, 258 F. Supp. 2d 1370 (S.D. Ga. 2002).

Malicious Prosecution

     City employee indicted and prosecuted for the theft of a ring from a crime scene failed to show that his indictment was obtained as the result of police conduct carried out in bad faith, and therefore failed to rebut a presumption of probable cause which arose from his indictment, defeating his malicious prosecution claim. There was no showing that supposedly exculpatory observations of the plaintiff by one officer at the crime scene were intentionally withheld from the prosecutor prior to the indictment. Savino v. City of New York, No. 02-7108, 331 F.3d 63 (2nd Cir. 2003).

Negligence: Vehicle Related

     Court rejects motorist's claim that an officer's use of a police car to transport him to the police station after the alleged use of excessive force to apprehend him was a negligent act coming within an exception to sovereign immunity applicable to the operation of a motor vehicle in the control of a governmental agency, so that he could assert a claim against the municipality for negligent infliction of emotional distress. No moving part of the car, the court found, was involved in the complained of events and the officer's use of the car was, "at best," merely "incidental" to the officer's allegedly unlawful conduct. Lakits v. York, 258 F. Supp. 2d 401 (E.D. Pa. 2003).

Off-Duty/Color of Law

     Off-duty, but "on-call" police officer did not act within the scope of his employment in driving a city vehicle, allegedly under the influence of alcohol, and striking and killing a man doing yard work, and then leaving the scene without rendering assistance to the victim. The officer was engaged in doing personal errands and his actions were in no way for the benefit of the city. Russell v. City of Memphis, 106 S.W.3d 655 (Tenn. Ct. App. 2002).

Police Plaintiff: Firearms Related

     Family of police detectives shot and killed by prisoner who obtained a weapon by stealing it from a police locker could not recover damages for wrongful death from the city on either the basis that the building was not adequately maintained or that the city provided the officers with an unsafe place of employment. The deaths were not caused by any physical condition in the locker room or defect in the facility itself, but rather by the practice of holding prisoners near the lockers where firearms were kept. Williams v. City of New York, 758 N.Y.S.2d 349 (A.D. 2nd Dept. 2003).

Police Plaintiff: Firefighters' Rule

     Firefighters' rule did not bar a police officers' negligence lawsuit against a truck driver for injuries suffered by the officer in a vehicle collision as he was driving to respond to a call reporting a domestic disturbance. The truck driver's alleged negligent driving was independent of the misconduct that resulted in the summoning of the officer. Terry v. Garcia, No. C040100, 134 Cal. Rptr. 2d 565 (Cal. App. 3d Dist. 2003).

Privacy

     Defendants who are not videotape service providers, such as law enforcement officers and agencies or prosecutors, could not be held liable under the Video Tape Privacy Protection Act (VPPA), 18 U.S.C. Sec. 2710 or the Tennessee Video Consumer Privacy Act, T.C.A. Sec. 47-18-2201 through 2205, for the disclosure and use of information relating to an individual's rentals of videotapes. Both statutes, in attempting to protect the privacy of those who rent videotapes from commercial businesses, do not provide for remedies against any persons who are not video service providers. Daniel v. Cantrell, 241 F. Supp. 2d 867 (E.D. Tenn. 2003).

Procedural: Discovery

     Arrestee's lawsuit against police officer for malicious prosecution was properly dismissed after discovery revealed that he was proceeding under a false name, under federal rule governing sanctions for discovery violations and the court's "inherent authority" to punish "flagrant contempt" of court. Dotson v. Bravo, #01-3494, 321 F.3d 663 (7th Cir. 2003).

     Trial court abused its discretion in imposing a sanction of dismissal of his lawsuit accusing police officers of assaulting him on a plaintiff whose attorney failed to meet three separate deadlines to file his responses to interrogatories posed by the defendants. Appeals court noted that the defendant city's attorneys were "equally careless and negligent in complying with their discovery obligations," but they and the city were not sanctioned. In cases where an attorney, rather than a litigant, is "clearly at fault" for failing to comply with discovery deadlines, the appeals court suggested, a judge should "give serious consideration" to punishing the "lawyer through a fine, an award of costs and attorneys' fees to opposing counsel" (to be paid by the plaintiff's lawyer, not the plaintiff), a citation for contempt, and professional discipline, "rather than punishing the plaintiff through dismissal of the suit." Rice v. City of Chicago, #02-1604, 333 F.3d 780 (7th Cir. 2003).

Procedural: Police Records/Reports

Civilian Review Board's "narrative report" on police shooting based on internal affairs reports and shooting review board reports was a confidential "personnel record" that could not be released to the public under California law. Davis v. City of San Diego, No. D039093, 131 Cal. Rptr. 2d 266 (Cal. App. 4th Dist. 2003).

Public Protection: Crime Victims

     Police and other city employees did not "create" the danger to storeowner in a high-crime area of being shot when compelled to stay late at the store because of the insistence of the defendants on conducting an inspecting after normal store hours. No liability for refusal to provide an escort of storeowner and employees to their cars after inspection ended, or for subsequent shooting and killing of storeowner and shooting of store employee by unknown persons. Gonzales v. City of Camden, 815 A.2d 489 (N.J. Super. A.D. 2003).

     Update: appeals court upholds ruling that officer's failure to immediately report his reasonable suspicion that a female middle school teacher was sexually abusing one of her female students did not subject him or the city to liability for violation of the student's due process rights. Windle v. City of Marion, Indiana, 321 F.3d 658 (7th Cir. 2003).

Search and Seizure: Home/Business

     Police officers could reasonably have believed that their search of a residence was proper based on a co-tenant supplying them with a key to the premises as well as signing a consent form, even if she did not accompany them to the home. The officers were therefore entitled to qualified immunity from claims for unreasonable search and seizure asserted by the other tenant, who they subsequently arrested. Crim v. King, No. 01-57106, 65 Fed. Appx. 591 (9th Cir. 2003).

Search and Seizure: Vehicle

     Boat owner was properly awarded $100,000 in damages for unfruitful search of his boat for drugs; affidavit for search warrant failed to provide probable cause since it did not show the basis for a belief in the reliability and veracity of the informant, or the basis of his purported knowledge, nor did the agent submitting the affidavit attempt to independently investigate the information. Maudsley v. State of New Jersey, 816 A.2d 189 (N.J. Super. A.D. 2003).

     Officers providing security outside concert site had reasonable suspicion that there might be weapons inside a vehicle, which gave them an adequate basis for making an investigatory stop of the car. Officers' conduct did not amount to an arrest of the driver or the passengers. Alexander v. Haymon, 254 F. Supp. 2d 820 (S.D. Ohio 2003).

State Constitutional Claims

     Washington state homeowner was not entitled, under state constitutional provisions concerning the taking of property and eminent domain, to compensation for alleged damage to her residence as a result of the execution of a search warrant there by police. Eggleston v. Pierce County, No. 71296-4, 64 P.3d 618 (Wash. 2003).

Wiretapping

     Federal appeals court upholds summary judgment for federal and state law enforcement defendants in civil lawsuit brought by federal prisoner who claimed that his rights under the Federal Wiretap Act, 18 U.S.C. Sec. 2510 et seq. had been violated in the course of his arrest and prosecution by the illegal interception of his phone conversations. Claims against all defendants were barred by the Act's two-year statute of limitations and prosecutors were entitled to absolute immunity. Plaintiff's cause of action under the Wiretap Act accrued on the date that he was informed that his conversations had been recorded. Lanier v. Bryant, No. 00-6408, 332 F.3d 999 (6th Cir. 2003).

Arbitration Procedures

     Arbitrator holds that management erred when it refused to pay for half of cost of stenographer used at arbitration hearing. Although AAA rule 21 provides that the requesting party shall pay the cost of making a record, the bargaining agreement provided that the "costs for arbitration" were to be borne equally by parties. Union-Scioto Bd. of Educ. and Uniioto Support Assn., AAA Case #52-390-00463-02, 118 LA (BNA) 710 (Cohen, 2003).

Attorneys' Fees and Legal Defense Rights

     Federal appeals court allows only $85,000 in legal fees and costs, of the $3.5 million sought by ex-president Clinton and his wife. The seven-year Whitewater investigation cost the government $70 million. In re Madison Guaranty S&L (Clinton Fee Application), No. 94-1, 2003 U.S. App. Lexis 14170 (D.C. Cir. 2003).

Bulletin Boards

     Second Circuit finds that a union informational poster, comparing the political positions of the presidential candidates, could not be posted on federal government bulletin boards, as it clearly violated the Hatch Act. Burrus v. Vegliante, #02-6257, 2003 U.S. App. Lexis 14125 (2nd Cir. 2003).

     Arbitrator holds that a public employees' union may post "generic" employment information on workplace bulletin boards, but not "internal" membership information. Naval Inventory Control Point and AFGE L-1156, 118 LA (BNA) 695 (Pritzker, 2002; rptd. 2003).

Collective Bargaining

     Federal Labor Relations Authority holds that Transportation Security Administration airport screeners were lawfully exempted from the federal employee bargaining rights. Dept. of Homeland Security and AFGE, #WA-RP-03-0023, 41 (2017) G.E.R.R. (BNA) 72 (FLRA Boston Reg. decis. 7/7/03).

Criminal Liability

     Eighth Circuit holds that in federal bribery prosecutions, the government does not have to prove a connection between the conduct and the federal funds. 8 U.S. Code §666(a)(2) makes it a federal offense to bribe employees or officials of state and local governments that receive federal funds. U.S. v. Sabri, #02-1561, 326 F.3d 937 (8th Cir. 2003).

Disciplinary Hearings

     Federal court in Philadelphia concludes that a probationary officer, who was fired after his arrest on a morals charge, is entitled to a name-clearing hearing. His acquittal of all criminal charges did not satisfy the hearing requirement. Graham v. Johnson, #02-7794, 2003 U.S. Dist. Lexis 12146 (E.D. Pa. 2003).

Disciplinary Investigations

     Appeals court rejects damage suit brought by a police officer, who was placed on administrative leave with pay for 18 months during an internal investigation after he refused, on Fifth Amendment grounds, to testify to a grand jury about the beating death of a fellow officer. Dwan v. City of Boston, #02-1493, 329 F.3d 275 (1st Cir. 2003).

Disciplinary Offenses

     Virginia State Bar rules that a lawyer employed by a federal agency does not act unethically by performing lawful undercover work that involves deception. Virginia State Bar Ethics Opinion No. 1765, 41 (2019) G.E.R.R. (BNA) 768 (6/13/03).

Disciplinary Punishment

     Arbitrator finds disparate treatment; management did not have just cause to suspend a detention officer who left several cell doors unlocked, where the officer who reported the infraction only did so because he had been instructed to write up everything she did, and did not report another officer who also left cell doors open. Lewis County and Teamsters L-252, Case #16946-A-02-1385, 118 LA (BNA) 685 (Ables, 2003).

Domestic Partner Rights

     Ninth Circuit upholds a city ordinance, requiring city contractors to provide equal benefits to their employees regardless of marital or domestic partner status. A recent state law governing the creation and registration of domestic partnerships did not preempt the ordinance. Also see prior decision at 253 F.3d 461 (9th Cir. 2001) where the court upheld the Ordinance as consistent with state law, federal law, and the U.S. Constitution. S.D. Myers v. C&C of San Francisco, #02-16480, 2003 U.S. App. Lexis 14985 (9th Cir. 2003).

     Indiana appellate court denies leave to a state employee that wanted paid time off to bereave the death of her domestic partner's father. Cornell v. Hamilton, #49A02-0208-CV-635, 2003 Ind. App. Lexis 1206 (2003).

Ergonomics

     Hawaii's compensation board denies a police dispatcher's claim for repetitive motion injuries. She could not show a relationship between her job and the condition. Andrade v. Co. of Hawaii Police Dept., #AB2001-307, 2003 HI Wrk.Comp. Lexis 3 (Haw. Labor Rel. App. Bd. 2003).

     Illinois' compensation board rejects a police officer's claim for repetitive motion injuries. The fact that he drives a patrol car several hours a day, and types various reports, did not establish an occupational connection. Kruzan v. Jacksonville Police Dept., #00WC069029, 2003 Ill. Wrk. Comp. Lexis 160 (2003).

Family, Medical & Personal Leave

     Federal appeals court affirms a jury verdict that a city employee was not fired for requesting FMLA leave. Gibson v. City of Louisville, #02-5473, 2003 U.S. App. Lexis 14329, 2003 FED App. 0233P (6th Cir.).

Handicap Laws Discrimination

     A probationary candidate for correctional officer, who was disqualified because of knee injuries, was not entitled to reassignment to another position, because disability discrimination laws requires accommodation only to a position within the same civil service classification for which a person is a candidate. Hastings v. Dept. of Corr., #C041708, 2003 Cal. App. Lexis 1111 (3d App. Dist. 2003).

     Ninth Circuit rejects the suit of a former detective who claims constructive discharge because management purportedly terminated her because of her disability (depression and attempted suicide). However, she sufficiently alleged a claim of intimidation to warrant the trial of her lawsuit. Brown v. City of Tucson, #01-16938, 2003 U.S. App. Lexis 15061 (9th Cir. 2003).

Health Insurance & Benefits

     Arbitrator rules that management violated the bargaining contract by changing the health insurance carrier, increasing firefighter co-pay costs. City of Glenpool, Okla. and IAFF L-2990, 118 LA (BNA) 761, FMCS Case #020827/15296-8 (Neas, 2003).

Hearing (Audio) Impairment

     Private employer agrees to pay $5.8 million to its 1000-plus deaf workers, to caption its training videos, to install visual alarms, and to provide interpreters at training programs. The employer also will pay $4.1 million in attorney fees and costs. Bates v. United Parcel Service, #C99-2216 (N.D. Cal. 2003); prior ruling at 204 F.R.D. 440, 2001 U.S. Dist. Lexis 19842 (2001).

Heart Problems

     Virginia's Workers' Compensation Commission affirms an award to a firefighter for job-related benefits even though the claimant had a family history of heart disease, hypertension, elevated cholesterol, smoked cigarettes and was obese. Bispo v. Metro. Wash. Airport Auth., VWC #198-70-94, 2003 VA Wrk. Comp. Lexis 541 (VWCC 2003).

     Appellate court rejects a duty-related disability claim from a police sergeant who suffered a heart attack. A compensation judge found that the officer's condition was caused solely by smoking and obesity and not by his existing cardiac condition. The three-judge appellate panel affirmed the denial of disability benefits. Voight v. City of Little Falls Police Dept., 2003 MN Wrk. Comp. Lexis 45.

Injuries to Employees

     Federal appeals court rejects §1983 claim by the widow of an officer who was slain by a prisoner that had not been searched properly. The deceased knew that no weapon had been confiscated from the arrestee. Wouters v. City of Warren, #01-2642, 2003 U.S. App. Lexis 14097 (Unpub. 6th Cir. 2003).

Military Leave

     A divided federal appeals court holds that the annual limit on military reserve training does not include days where a federal employee is not scheduled to work. Butterbaugh v. Dept. of Justice, #02-3331, 2003 U.S. App. Lexis 14742 (Fed. Cir. 2003).

Out of Title Assignments

     Arbitrator rules that management did not violate the bargaining agreement when it eliminated four jail specialist positions and assigned those duties to police officers, because the work is minimal, and does not equal one full-time specialist's position. City of Dayton and AFSCME C-8, 118 LA (BNA) 681, AAA #52-E-390-0013303 (Bell, 2003).

Promotional Rights

     Illinois repeals the "rule of three" in firefighter promotions; fire depts. and districts (except Chicago) are now required to establish promotion procedures that are based on written exam scores, seniority, merit, subjective evaluation and veterans' preference. Vacancies and new positions must be filled by promoting the candidate with the highest rank on the eligibility list, unless that individual has a poor work performance history or has engaged in misconduct. H.B.988, Public Act 93-0411.

Psychological Exams

     An employee who alleges that after filing discrimination complaints with the union and with his superiors, he was forced to undergo retaliatory psychiatric evaluations as a condition of employment, "has sufficiently alleged material adverse employment actions to survive a motion to dismiss." Syken v. New York, #02-Civ-4673, 2003 U.S. Dist. Lexis 5358 (S.D.N.Y. 2003).

Sick Leave & Abuse

     Appeals court upholds the termination of a public employee who played golf while on FMLA leave to care for a sick father. McDaneld v. Eastern Munic. Water Dist., #E032426, 109 Cal.App.4th 702, 135 Cal.Rptr.2d 267, 2003 Cal. App. Lexis 844 (2003).

Stress Related Claims

     Appeals court affirms order to reinstate a deputy sheriff, who received a worker's comp. stress award. County could not refuse to reinstate the deputy because she needs a stress-free work environment. Hanna v. Los Ang. Co. Sheriff's Dept., #B150425, 102 Cal.App.4th 887 (2nd App. Dist. 2002).

     Pennsylvania Supreme Court finds that a death threat to a police officer and his family was unusual, even for a law enforcement officer, because it included a $50,000 bounty and death threats to the officer's children at school. These were not part of a normal officer's experiences and stress compensation benefits were appropriate. City of Pittsburgh v. Logan, 810 A.2d 1185 (2002).

     Arizona state trooper has wins disability benefits for PTSD. The state claimed that shooting suspects was not an unexpected event as required by state compensation laws. Expert testimony supported his claim, and the compensation judge ruled "that shooting and killing another human being in the line of duty is an extraordinary stress related to the employment." [David] Mogel v. Dept. of Public Safety, Ariz. Indus. Cmsn. (2002).

Vehicle Related

     Although the chief could modify the punishment recommended by an Accident Review Board, he must justify any increase in penalty with good reasons. Arbitrator reduces the suspension from 7 to 4 days, as originally recommended. City of Houston and Indiv. Grievant "G", 118 LA (BNA) 702 (Moore, 2003).

Whistleblower Requirements and Protection

     Federal court upholds the right of management to fire a prison psychologist who released confidential records to public advocates and the news media. Whistleblower laws protect only those who report misconduct to the appropriate public officials.. Dennison v. Penna. Dept. of Corrections, #3:01cv56, 2003 U.S. Dist. Lexis 9579 (M.D. Penna. 2003).

     City worker who was fired after he testified against his boss wins an $853,750 verdict. Ospalski v. City of Warren, #01-CV-71454, 46 (5) ATLA L. Rep. (E.D. Mich. 2003).

Workers' Compensation

     Arizona Industrial Cmsn. approves worker's comp. benefits for employees who suffer a reaction to a smallpox vaccination. "Entitlement to Workers' Compensation for Workers Receiving the Smallpox Vaccination in Arizona." (Feb. 20, 2003).

Access to Courts/Legal Info

     Prisoner was not entitled to an appointed lawyer to pursue his claims concerning alleged violations of his right of access to the courts and counsel, since the lawsuit did not involve "difficult" legal or factual issues and the prisoner, who acted as his own lawyer, was sufficiently familiar with federal civil rights actions. Davidson v. Goord, 259 F. Supp. 2d 238 (W.D.N.Y. 2003) [See also the federal magistrate's earlier decision and recommendations, reported as Davidson v. Goord, 259 F. Supp. 2d 236 (W.D.N.Y. 2002)]

Defenses: Eleventh Amendment Immunity

     Georgia sheriffs held to be an "arm of the State" in establishing "use-of-force" policy for county jails, and therefore entitled, in their official capacity, to Eleventh Amendment immunity from liability. Sheriff was not subject to federal civil rights lawsuit for damages for alleged assault on a detainee by deputy and a police officer after the arresting officer stated that the prisoner had previously struck him. Manders v. Lee, #01-13606, 338 F.3d 1304 (11th Cir. 2003).

Disability Discrimination: Employees

     Policy of state correctional department requiring employees to submit general medical diagnoses as part of the medical certification procedure concerning the employee's entitlement to leave violated the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12112, since it constituted an inquiry into whether the employee might have a disability and was prohibited in the absence of a showing of "business necessity." Conroy v. New York State Department of Correctional Services, No. 02-7415, 333 F. 3d 88 (2nd Cir. 2003).

DNA Tests

     North Dakota Supreme Court upholds constitutionality of state statute expanding DNA testing requirement to prisoners convicted of enumerated non-sexual violent felonies. Statute was rationally related to legitimate government purposes of apprehending and identifying perpetrators of future sex-related and violent crimes, "exonerating the innocent," and reducing costs. State of North Dakota v. Leppert, No. 20020160, 656 N.W.2d 718 (N.D. 2003).

Freedom of Information

     Inmate who succeeded in his claim that he was improperly denied access to certain public records by a state official was entitled to an award of postage, envelope, and copying costs as "reasonable costs of enforcement" under Florida statute, F.S.A. Sec. 119.12, when the prisoner acted as his own attorney, even if such costs would not be recoverable if he was represented by a lawyer, since these would be "normal office overhead expenses" for an attorney. Weeks v. Golden, 846 So. 2d 1247 (Fla. App. 1st Dist. 2003).

Inmate Funds

     Pennsylvania prisoner's rights were not violated by the actions of correctional officials in deducting funds from his inmate account to pay fines and costs imposed as part of his sentence. State statute governing the collection of fines and costs was "procedural" and therefore could be applied retroactively. George v. Beard, 824 A.2d 393 (Pa. Cmwlth 2003).

Mail

     Prison policies prohibiting the receipt of free or gift subscriptions to publications, preventing some inmates in a lower offender classification from purchasing publications, and limiting other inmates to spending no more than $30 per month to purchase publications did not violate prisoners' First Amendment or due process rights and were rationally related to legitimate interests in controlling, managing, and tracking property in order to identify prohibited activities, promote institutional order through privileges and incentives, and making sure there were sufficient assets to collect inmates' other financial obligations, such as restitution and child support. Failure to notify publishers when prisoners were denied receipt of mailed publications did not violate the publishers' constitutional due process rights. Zimmerman v. Simmons, 260 F. Supp. 2d 1077 (D. Kan. 2003).

Marriage/Procreation

     Prison officials were entitled to qualified immunity on a claim for damages for postponing a prisoner's marriage to his fiancee for twelve months, since it was not clearly established that a delay of that length was unconstitutional. Lawsuit's claims for injunctive relief were moot, since prior restrictions on the fiancee's visits were lifted and the couple had been allowed to marry. Martin v. Snyder, No. 02-1135, 329 F.3d 919 (7th Cir. 2003).

Medical Care

     Prisoner's allegations that his leg infection and urinary tract infection worsened and became more serious as a result of inadequate medical treatment was sufficient to support a claim against prison officials for violation of his Eighth Amendment rights, but trial court acted erroneously by declining to rule on the merits of prison officials' motion for summary judgment on the basis of qualified immunity, particularly when plaintiff did not file an affidavit in opposition or show why he needed further discovery to respond. Wallin v. Norman, #02-1634, 317 F.3d 558 (6th Cir. 2003).

     Prisoner failed to show that prison officials violated his Eighth Amendment rights by allegedly forcing him to do work which caused pain or aggravated a prior medical condition when there were no medical restrictions on the prisoner in effect when he transferred to the facility, and medical restrictions placed on the prisoner at his prior institution had expired and were two to four years old. Hogan v. Oklahoma Department of Corrections, No. 02-7091, 65 Fed. Appx. 662 (10th Cir. 2003).

     Prisoner failed to show that correctional officials were deliberately indifferent to medical needs including hypoglycemia, hypertension, dental complaints, and problems with his feet, back, legs, fingers, and wrists. The record contained "abundant evidence" that he received treatment for these medical needs since 1992, and, at most, that he disagreed with his health care providers and correctional officials as to the recommended treatment programs for these problems, which was insufficient to state a constitutional claim. Baker v. Simmons, #02-3260, 65 Fed. Appx. 231 (10th Cir. 2003).

     Medical staff at county detention facility did not show deliberate indifference to prisoner's serious medical needs by denying him access to post-cancer reconstructive surgery at Veterans Administration (VA) hospital. While the prisoner did inform them that he had surgery scheduled there, he did not sign the necessary release form to obtain his VA medical records to determine the need for the surgery and the nature of the problem, nor did he show that any substantial harm resulted from the delay in the surgery. Shepard v. Sullivan, No. 02-1198, 65 Fed. Appx. 677 (10th Cir. 2003).

Parole

     Prisoner's claim that participation in parole decision by temporary Parole Board members appointed by Governor without state Senate confirmation violated state law did not establish a federal civil rights claim for violation of due process, in the absence of any evidence that their participation altered the result or denied him any procedural rights necessary to a fair decision. Sonntag v. Papparozzi, 256 F. Supp. 2d 320 (D.N.J. 2003).

Prison Litigation Reform Act: Attorneys' Fees

     Federal appeals court, by 6-5 vote, upholds constitutionality of attorneys' fees limits in prisoner lawsuits imposed by the Prison Litigation Reform Act. Trial judge's finding of an equal protection violation overturned in case where prisoner was awarded damages for alleged deliberate indifference to his need to be evaluated for a liver transplant. Johnson v. Daley, #00-3981, 339 F.3d 582 (7th Cir. 2003).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner could pursue claims against some nurses for alleged inadequate medical care and retaliation against him for filing of an earlier lawsuit, but not against one nurse against whom he had failed to exhaust available administrative remedies concerning retaliation claim. The prisoner's grievance only had to allege misconduct by the nurses and did not need to plead all the elements of a particular legal theory. Burton v. Jones, No. 01-1078, 321 F.3d 569 (6th Cir. 2003).

     Summary judgment was improper on prisoner's claim that correctional officers assaulted him when there was a genuine issue of fact as to whether he had exhausted his available administrative remedies prior to filing suit, as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a). Evans v. Jonathan, 253 F. Supp. 2d 505 (W.D.N.Y. 2003).

Prisoner Assault: By Inmates

     Court's order requiring prisoner to be kept in a particular facility to allow him to effectively pursue pending litigation did not entitle prison officials to absolute immunity from the inmate's claim of deliberate indifference to his confinement there which allegedly resulted in his being attacked by a cellmate for being a "snitch." Hamilton v. Leavy, #01-3062, 322 F.3d 776 (3rd Cir. 2003).

     Jury awards estate of inmate murdered by another prisoner $2,641 in damages on claim that a prison employee showed deliberate indifference to the risk of harm after the inmate had taken action which resulted in his assailant getting suspended from a prison print shop work assignment for improperly using the telephone. Flint v. Kentucky Department of Corrections, No. 96-CV-0591 (E.D. Ky. July 10 2003), reported in The National Law Journal, p. 14 (Aug. 11, 2003).

     Even if correctional officer was "grossly negligent" in leaving prison dorm without obtaining a replacement monitor, this was insufficient to impose civil rights liability for subsequent assault on prisoner by alleged gang member housed in the same unit, as it did not show "deliberate indifference" to a known risk of harm. Miller v. McBride, No. 02-1147, 64 Fed. Appx. 558 (7th Cir. 2003).

Prisoner Assault: By Officer

     State-established jail authority which held immigration detainees in custody under a contract with the federal government acted under "color of state law" for purposes of one such detainee's excessive force claim arising out of actions of correctional officers. Federal contract did not specify how the authority was to supervise its guards and the detainee's claim alleged failure to adequately train officers and "condonation" of their use of excessive force. Jarno v. Lewis, 256 F. Supp. 2d 499 (E.D. Va. 2003).

Prisoner Discipline

     Alleged failure to grant prisoner the right to request interviews of witnesses to incident and the consideration of their testimony at disciplinary hearing violated the prisoner's due process rights. Armstrong v. Snyder, No. 4-02-0271, 783 N.E.2d 1101 (Ill. App. 4th Dist. 2003).

     Prisoner had no federal constitutional right not to be falsely accused of misconduct in prison disciplinary hearings, nor could a federal civil rights claim be based on the mere failure to follow all applicable state procedures in the hearing held. Jackson v. Hamlin, #02-2040, 61 Fed. Appx. 131 (6th Cir. 2003).

     There was substantial evidence to support the determination that a prisoner was guilty of violating disciplinary rules prohibiting making threats and harassment of staff members by sending a nurse a letter with derogatory and insulting language, as well as refusing direct orders from a correctional officer to step out of a recreation area. Green v. Ricks, 760 N.Y.S.2d 238 (A.D. 3d Dept. 2003).

     Female prison guard's conduct report, stating that inmate, while naked, jumped around his cell and made sexual gestures and comments to her was a sufficient basis for a disciplinary board's decision to find the prisoner guilty of violating rules against making sexual propositions to a staff member and impose a punishment of the loss of 180 days of good-time credits. Higgason v. Hanks, No. 02-2775, 64 Fed. Appx. 556 (7th Cir. 2003).

Prisoner Suicide

     Manufacturer of paper gown allegedly marketed for use with suicidal prisoners could be held liable when it failed to tear away when detainee hanged himself with it. Claims for products liability, negligence, and breach of warranty could proceed, along with due process claims against city for alleged reckless failure to provide proper medical care for suicidal prisoner. Court dismisses Eighth Amendment claim as inapplicable for the death of a pretrial detainee, as opposed to a convicted prisoner. Reed v. City of Chicago, No. 01C7865, 263 F. Supp. 2d 1123 (N.D. Ill. 2002).

     County and county sheriff reach $300,000 settlement with family of jail inmate on their claim that his needs for psychiatric counseling were ignored, leading to his successful suicide. Lawsuit contended that the jail staff had knowledge that the prisoner had suicidal tendencies and had been diagnosed as a manic-depressive schizophrenic, but failed to make arrangements to provide mental health care. Estate of Price v. Black Hawk County, No. 00-CV-2008 (N.D. Iowa March 21, 2003), reported in The National Law Journal, p. B2 (April 7, 2003).

Prisoner Transfer

     Prisoner could state a claim for retaliatory transfer for having filed a grievance against an officer based on a sequence of events from which a retaliatory motive could be inferred, without proving motivation in the complaint. Illinois prisoner had a protected liberty interest in continued participation in work release program which could not be ended without due process. Segreti v. Gillen, 259 F. Supp. 2d 733 (N.D. Ill. 2003).

     Three federal trial court decisions rule that a change in federal Bureau of Prisons' policy concerning the placement of inmates serving short terms of imprisonment into community correctional facilities violated the "notice and comment" requirements of the Administrative Procedures Act (APA). Retroactive application to inmates currently in halfway houses also rejected. Iacaboni v. U.S., 251 F. Supp. 2d 1015 (D. Mass. 2003); Howard v. Ashcroft, 248 F. Supp. 2d 518 (M.D. La. 2003); Ferguson v. Ashcroft, 248 F. Supp. 2d 547 (M.D. La. 2003).

Protective Custody

     Indiana prisoner had no constitutionally protected right to a hearing concerning his transfer from protective custody. "Classification matters should be left to prison authorities unless there are clear constitutional violations involved." Miller v. McBride, 259 F. Supp. 2d 738 (N.D. Ind. 2001).

Private Prisons

     Guards and operator of private facility with custody over only federal prisoners could not be sued under federal civil rights statute, 42 U.S.C. Sec. 1983, since they did not act under "color of state law," but the guards at the facility were acting under color of federal law and therefore could still be sued directly for alleged violations of prisoner's constitutional rights in leaving him unprotected against assault by another prisoner. Such a claim could not, however, be asserted against the corporation which operated the prison. Sarro v. Cornell Corrections, Inc., 248 F. Supp. 2d 52 (D.R.I. 2003).

Public Protection

     County could not be held liable for failing to protect community member against being shot and killed by a "house arrestee" who escaped after removing his home monitoring device. The county had no special relationship with the shooting victim which imposed a duty to protect him against this risk, and the county, in failing to take any action to recapture the house arrestee, did not do anything to create the danger to the victim. Kennerly v. Montgomery County Board of Commissioners, 257 F. Supp. 2d 1037 (S.D. Ohio 2003).

Religion

     New York federal court rules that "Five Percenter" group, widely classified by correctional institutions as a security threat group and gang, is entitled to treatment as a religion by prison officials. Injunction issued allowing prisoner to possess a copy of the group's basic text and numerological devices, with further proceedings ordered as to the possible right to possess other group materials and symbols, including its newspaper, or to engage in gatherings and fasts. Marria v. Broaddus, 2003 U.S. Dist. Lexis 13329 (S.D.N.Y. 2003).

     Prisoner's claim that prison officials denied twelve separate requests he submitted to attend Jehovah Witness religious services was sufficient to state a claim for violation of his First Amendment right to exercise his religion, so that court declined to dismiss the claim. Gill v. Hoadley, 261 F. Supp. 2d 113 (N.D.N.Y. 2003).

Sexual Assault

     President Bush on September 4, 2003 signed into law the Prison Rape Elimination Act of 2003 unanimously passed by Congress on July 24, 2003 (Senate) and July 25, 2003).

Sexual Harassment

     Female correctional officers showed that sheriff's office provided a pervasively sexually hostile work environment for female employees and that they faced unlawful retaliation for complaining about it. Officers did not show, however, that they were denied promotions and were terminated on the basis of sex discrimination. Court awards both of two plaintiffs $150,000 in compensatory damages and $20,000 in punitive damages, as well as attorneys' fees. Brissette v. Franklin County Sheriff's Office, 235 F. Supp. 2d 63 (D. Mass. 2003).

Transsexual Prisoners

     State prison may not deny treatment of prisoner's alleged gender identity disorder solely on the basis that he only initially sought such treatment after his incarceration. Brooks v. Berg, No. 00-CV-1433, 2003 U.S. Dist Lexis 11911 (N.D.N.Y.).

Visitation

     Massachusetts prisoner did not have constitutionally protected liberty interests which were infringed by his loss of visitation for six weeks as a punishment for allegedly violating prison disciplinary rules. Childers v. Maloney, 247 F. Supp. 2d 32 (D. Mass. 2003).

Work/Education Programs

     Participation in an "industrial training" leave program was not a right for a New York inmate, so that he was not entitled to a review of a decision denying his request to participate in the program. Further, the nature of the prisoner's crimes, which included his misconduct as an attorney in misappropriating over $4.7 million in funds from his clients' escrow accounts, raised "serious doubts" about whether he was trustworthy enough to participate, and whether his release for participation "posed a threat to community safety." Wallman v. Joy, 760 N.Y.S.2d 560 (A.D. 3d Dept. 2003).