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

Assault and Battery: Chemical

     Officer was not required to give advance warning of his use of pepper spray in his attempt to subdue a man, armed with a walking stick, who was suspected of having already used it to inflict serious injury on a woman in a laundromat who was observed bleeding profusely from her head at the scene. Further, his use of deadly force was also justified when the suspect appeared ready to attack him and refused orders to drop the stick. McCormick v. City of Fort Lauderdale, No. 01-16567, 333 F.3d 1234 (11th Cir. 2003).

Attorneys' Fees: For Plaintiff

     Arrestee who was awarded $80,000 in jury verdict for city's prosecution of him for obstruction of justice without probable cause was properly awarded attorneys' fees, but trial court applied the wrong legal standard in reducing the award of attorneys' fees to $95,507 based on the hours attorneys spent on plaintiff's unsuccessful claims. Webb v. Sloan, No. 01-16855, 330 F.3d 1158 (9th Cir. 2003).

     Prevailing plaintiffs in federal civil rights lawsuit over alleged illegal search and seizure were entitled to an award of the attorneys' fees they incurred in obtaining the dismissal of criminal charges against them arising out of the search, since the dismissal of those charges was necessary under Heck v. Humphrey, 512 U.S. 477 (1994), prior to pursuing a successful civil rights action which necessarily implied the invalidity of the criminal prosecution. A total of $86, 794.20 was awarded in attorneys' fees, which included some fees for legal services in defending against the criminal charges. Rosas v. County of San Bernardino, 2260 F. Supp. 2d 990 (C.D. Cal. 2003).

Defamation

     A county police department could not be liable to an arrestee for defamation for making published statements that he had been taken into custody for alleged theft of services in not paying a disputed bill. The fact that the statements were true barred liability for libel or slander, even if they did damage to the arrestee's reputation. Truth is an "absolute defense" to defamation claims. Carlton v. Nassau County Police Dept., 761 N.Y.S.2d 98 (A.D. 2nd Dept. 2003).

Defenses: Absolute Immunity

     Prosecutor who filed a misdemeanor criminal complaint against a man for adultery, based on his admission of an extra-marital affair in the course of his grand jury testimony, was entitled to absolute immunity for the decision to prosecute even though the prosecutor later acknowledged that he exceeded his authority in bringing the charge, and the charges were subsequently dismissed. A prosecutor who brings criminal charges is entitled to absolute immunity for doing so, unless he acts in the absence of all jurisdiction. Thomas v. County of Putnam, 257 F. Supp. 2d 711 (S.D.N.Y. 2003).

Defenses: Release Agreements

     While a release agreement signed by an alleged victim of sexual assault by a former city police officer was voluntarily entered into in exchange for a plea agreement on pending intoxicated driving charges, a federal trial court ruled that there were "relevant public interests" which barred enforcement of the release. The court noted the evidence supporting the sexual assault claim and ruled that enforcement of the release could adversely affect a public interest in deterring police misconduct. Oliver v. City of Berkley, 261 F. Supp. 2d 870 (E.D. Mich. 2003).

Defenses: Statute of Limitations

     In the absence of an express written waiver of the deadline to bring a case to trial within a California statutory five-year time limit, the deadline to do so would not be extended. In this case, the plaintiffs in a civil rights/wrongful death lawsuit over the shooting of their child, in stipulating to a continuation of the trial date to a date within the five year time period did not enter into an agreement with the defendants that extended the deadline beyond the five years. Court also rejects argument that the death of an attorney for a defendant police officer made bringing the plaintiff's case to trial within the five years "impracticable," extending the deadline. Lawsuit was properly dismissed, therefore, for failure to bring the case to trial in a timely manner. Sanchez v. City of Los Angeles, No. B157711, 135 Cal. Rptr. 2d 869 (Cal. App. 2nd Dist. 2003).

Dogs

     Federal appeals court holds that privately owned pet dogs are personal "effects" protected under the Fourth Amendment from unreasonable searches and seizures, but also finds that animal control officers' actions in shooting and killing the plaintiffs' dogs were objectively reasonable under circumstances where the dogs posed an actual or potential threat to the officers or others. Altman v. City of High Point, North Carolina, No. 02-1178, 330 F.3d 194 (4th Cir. 2003).

Domestic Violence

     Police officer's alleged romantic involvement with victim did not alter a valid restraining order supported by probable cause into "one that was not," and he was entitled to qualified immunity for enforcing the order against the plaintiff after the woman who obtained the order called police about the plaintiff's alleged violation of it. Deen v. Corning City, No. 01-16705, 66 Fed. Appx. 675 (9th Cir. 2003).

False Arrest/Imprisonment: No Warrant

     Officers had probable cause to make a warrantless arrest of a woman on charges of leaving written bomb threats in her workplace, based on expert evidence that she was more probably than not the writer of the notes, her access to the places where the notes were found, and the lack of any other apparent suspect. Valente v. Wallace, No. 02-2549, 332 F.3d 30 (1st Cir. 2003).

     No reasonable officer could believe, federal appeals court finds, that a motorist's actions in tape recording a traffic stop without consent provided probable cause to arrest him for violating a Washington state privacy statute, since the plain language of the law prohibited only the recording of a "private" conversation. Alford v. Haner, #01-35141, 333 F.3d 972 (9th Cir. 2003).

     There was probable cause for the arrest of the plaintiff on the basis of two person's statements that he fired shots at them, as well as statements by two neighbors that they saw him fire a gun into the air after running into the street. Price v. Cochran, No. 02-3213, 66 Fed. Appx. 781 (10th Cir. 2003).

     A police officer could have reasonably believed that he had probable cause to arrest a woman at a motel for use of a stolen credit card after the motel reported such use and, when he went to the room, the occupant refused to let him see the credit card that she had used to pay for the room. Federal appeals court reinstates jury's verdict for the defendant officer in the arrestee's false arrest lawsuit, overturning the trial judge's $4,000 judgment as a matter of law for the plaintiff. Passage v. DeLoach, No. 01-6123, 64 Fed. Appx. 504 (6th Cir. 2003).

     Police officer could not reasonably have believed that she had probable cause to arrest a woman for obstructing official business or assaulting an officer by pointing her finger at the officer in the course of an argument in the woman's kitchen about the officer's questioning of the woman's daughter. Officer was therefore not entitled to qualified immunity from liability. Lyons v. City of Xenia, Ohio, 258 F. Supp. 2d 761 (S.D. Ohio. 2003).

Family Relationships

     Federal appeals court rules that the law of the state of Georgia as to the standing of a parent of an adult child murdered to pursue wrongful death claims against those who caused the death is incorporated into federal law under 42 U.S.C. Sec. 1988, and that, pursuant to the Georgia Supreme Court's answer to the question the appeals court previously certified to it, the mother of a man murdered by his surviving spouse could pursue a federal civil rights claim for the death. Carringer v. Rodgers, #01-15258, 331 F.3d 844 (11th Cir. 2003).

Firearms Related: Intentional Use

     Police chief did not use excessive force in personally shooting and killing a man "brandishing" an 18 to 20 inch sword who raised it towards officers at the scene of a disturbance. Mace v. City of Palestine, No. 02-40335, 333 F.3d 621 (5th Cir. 2003).

     Officers were entitled to qualified immunity for shooting a man who refused to drop his handgun after he was ordered to do so. Officers were responding to reports of shots fired in a high-crime area and could reasonably believe that the suspect presented a serious threat of personal harm to them once he disobeyed orders to drop the weapon, regardless of whether or not he was then pointing the weapon at the officers. Cunningham v. Hamilton, 259 F. Supp. 2d 457 (E.D. Va. 2003).

First Amendment

     Pro-statehood, pro-U.S. demonstrator in Puerto Rico did not adequately show that police violated his First Amendment rights by arresting him, thereby showing favoritism towards non-statehood supporters, "leftist groups," and "anti-American" sentiment expressed by opposing demonstrators there. The court noted that the plaintiff was the only person arrested in this single alleged incident, out of 500 pro-U.S. demonstrators present to oppose anti-U.S. demonstrators, which was insufficient to show a policy of making arrests on the basis of political affiliation. The plaintiff, who suffered from a chronic emotional condition and a schizophrenic disorder, was removed from the scene on the basis of his actions, in order to "avoid any serious altercations with protesters." Bonilla v. Vivoni, 259 F. Supp. 22d 135 (D. Puerto Rico 2003).

Governmental Liability: Policy/Custom

     Town's failure to adopt a policy or procedure to make sure that exculpatory material concerning arrestees was transmitted from police officers to prosecutors could potentially be the basis for federal civil rights liability. Murvin v. Jennings, 259 F. Supp. 2d 180 (D. Conn. 2003).

     City could not be held vicariously liable for its officers' alleged negligence in failing to get positive identification from persons who impersonated the plaintiff, even if this later resulted in his mistaken arrest and detention for the actions of these impersonators. There was no showing of an official municipal policy or custom which caused this to happen. Sanchez v. City of Albuquerque, No. 02-2107, 65 Fed. Appx. 2241 (10th Cir. 2003).

     City and supervisory personnel could not be held vicariously liable for officers' actions in allegedly improperly conducting a rape and assault investigation, resulting in the plaintiff's wrongful conviction when there was no evidence that the city and police chief actually had a policy or custom which caused the officers' actions. Alexander v. City of South Bend, 256 F. Supp. 2d 865 (N.D. Ind. 2003).

Off-Duty/Color of Law: Arrest Related

     Off-duty transit police officers acted completely in their own personal interests in pulling over a motorist after he allegedly damaged their personal car, so that their employer could not be held liable for their alleged false arrest and assault of the motorist, despite the fact that they displayed badges during the incident. They acted in order to make sure that the plaintiff paid for the damage to their car, not to enforce laws against erratic driving. Schilt v. New York City Transit Authority, 759 N.Y.S.2d 10 (A.D. 1st Dept. 2003).

Off-Duty/Color of Law: Firearms Related

     Summary judgment was not possible on the issue of whether an off-duty police officer was acting within the scope of employment in shooting a man he encountered on the street. The issue depended on whether a jury believed the officer's version of the incident, that the plaintiff had grabbed him from behind and attempted to rob him, or the plaintiff's version, that the officer engaged in a person quarrel with him after the plaintiff mistook him for a man who owed him a gambling debt, and shot him after he tried to walk away. Campos v. City of New York, 759 N.Y.S.2d 843 (Sup. 2003).

Police Plaintiff: Vehicle Related

     City which was self-insured was required under Connecticut law to provide only the statutory minimum in underinsured motorist coverage to an officer it employed, so that when the officer settled with the motorist for an amount equal to that minimum, the city was not liable to the officer as an underinsured motorist insurer for the officer's claimed injuries in excess of that amount. Serra v. City of West Haven, No. 22992, 822 A.2d 1018 (Conn. App. 2003).

Privacy

     UPDATE: $325,00 settlement reached in the first case brought under federal statute protecting the privacy of driver's license records. Trial court held that statute creates a private cause of action imposing vicarious liability on municipalities if employees or agents violate it with "apparent authority," and that 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, 00-CV-1201, 250 F. Supp. 2d 63, 2003 U.S. Dist. Lexis 3971 (N.D.N.Y.).

Procedural: Class Action

     Neighborhood residents allegedly detained and searched by officers en masse following basketball tournament were properly certified as a class in a federal civil rights lawsuit challenging the actions as unlawful and seeking damages. The fact that individual plaintiffs might claim differing amounts of damage did not support the defendants' motion for decertification. Williams v. Brown, 214 F.R.D. 484 (N.D. Ill. 2003).

Procedural: Discovery

     Insurance claims adjuster's interviews of officers after incident where they allegedly tackled an individual and injured his shoulder following a disturbance in a parking lot were not protected by attorney-client privilege or work product privilege from discovery in litigation federal civil rights lawsuit because they were not conducted in anticipation of litigation. Claims adjuster's interviews of witnesses to the incident, however, were protected under the work product privilege because they were conducted in anticipation of litigation. Garcia v. City of El Centro, 214 F.R.D. 587 (S.D. Cal. 2003).

Public Protection: Arrestees

     Deputies and sheriff were not liable for injuries suffered by a pedestrian on the side of the road when he was struck by a drunken driver while being detained by the deputies, who were searching for an escaped jail prisoner. The deputies activated their overhead lights and flashing headlights, and also pulled their vehicle as close as possible to the suspects they detained. The fault for the injuries rested with the drunk driver, who admitted that he "blanked out" or fell asleep after seeing the lights, and not with the deputies or the sheriff. Freeman v. Tate, 847 So. 2d 800 (La. App. 2003).

Racial/National Origin Discrimination

     While there was no general duty to provide police protection or investigate a particular crime, an African-American man stated a claim for violation of the right to equal protection of the law by asserting that officers failed to conduct any substantial investigation of shots being fired at his car solely on the basis of his race. Roman v. City of Reading, 257 F. Supp. 2d 799 (E.D. Pa. 2003).

     African-American motorist's complaint adequately alleged facts which, if true, could support a claim that a state trooper lacked any legitimate reason to stop him, but did so on the basis of his race. Motorist claimed that at the time of the "traffic stop," he was obeying all traffic laws and staying in his lane, which would not have been possible if he had been, as the trooper claimed, reclining in his seat to the extent that he could not see the road. Wilson v. Department of Public Safety, No. 02-6236, 66 Fed. Appx. 791 (10th Cir. 2003).

Search and Seizure: Home/Business

     Two police officers were each properly assessed $10,000 in compensatory and $20,000 in punitive damages, appeals court rules, for unreasonable and "unnecessarily degrading" and prolonged detention of female resident of home who was not a subject of their investigation during the execution of a search warrant. Plaintiff was allegedly kept in handcuffs for several hours, marched barefoot through the rain, and unnecessarily questioned about her citizenship status. Mena v. City of Simi Valley, #01-56673, 332 F.3d 1255 (9th Cir. 2003).

     While the "knock and announce" rule is clearly established law, a violation of which, without cause, could support a federal civil rights claim, in this instance the officers had exigent circumstances justifying their unannounced entry into the home to serve the search warrant. At the time of the search, there were three armed suspects "on the loose," with a "good chance" that they were hiding in the house being entered. Battiste v. Rojeski, 257 F. Supp. 2d 957 (E.D. Mich. 2003).

Search and Seizure: Vehicle

     Municipality could not be held liable for officers' alleged improper searching of the trunk of a motorist's car during a stop without his consent or any other sufficient legal reason to do so, in the absence of any evidence showing that official policies, customs, or practices of the village caused the actions. Warner v. Village of Goshen Police Dept., 256 F. Supp. 2d 171 (S.D.N.Y. 2003).

Sexual Assault and Harassment

     Commissioner of public safety was not entitled to qualified immunity from liability for state trooper's alleged lewd and suggestive comments to female motorist while strip-searching her during a traffic stop. He was allegedly aware of trooper's propensities towards misconduct with female motorists, but backed down on a decision to fire him, returning him to duty on the highways instead. Clancy v. McCabe, #01-P-806, 790 N.E.2d 1126 (Mass. App. 2003).

     Police superintendent could be sued for liability for alleged sexual abuse of eighth grade female student by police officer assigned to school, based on alleged failure to properly select, train, evaluate and supervise the officer. Plaintiff was entitled to conduct discovery to see if the officer's record revealed a pattern of "aggressive behavior or sexual misconduct" sufficient to put the superintendent on notice that he was not an appropriate person to assign to the school. Perez v. Fajardo, 257 F. Supp. 2d 467 (D. Puerto Rico 2003).

Wiretapping & Video Surveillance

     Deputy sheriff's alleged dissemination to other law enforcement officials of audiotape of private conversation between a private investigator and another person did not violate Louisiana wiretapping statute. Audiotape, while obtained without a judicially authorized wiretap, was intercepted by a third party, not the deputy, and therefore did not subject the deputy to civil liability. Marinovich v. Illg, No. 2002-CA-1870, 847 So. 2d 659 (La. App. 2003).

Arbitration Procedures

     Eighth Circuit holds that if, during the course of tripartite arbitration, a party-appointed arbitrator dies or resigns, the parties do not need to start all over again. The party that the arbitrator represented should name a replacement. National Am. Ins. v. Transamerica Occid. Ins., #02-1992, 328 F.3d 462, 2003 U.S. App. Lexis 9125 (8th Cir. 2003).

     Federal appeals court holds that an employer was not required to arbitrate employee terminations because the bargaining agreement between the parties had expired and there was no provision for arbitration of disputes arising after the expiration. Dist. 1 Marine Engrs. v. GFC, #02-12277, 331 F.3d 1287 (11 Cir. 2003).

     A badly split Wisconsin Supreme Court holds that the decision to demote a person during the promotional probationary period is not arbitrable, absent specific language in the contract. City of Madison v. Wis. Empl. Rel. Cmsn., #99-0500, 2003 WI 52, 662 N.W.2d 318 (2003).

Arbitration Punishment Awards - Right of Courts to Interfere

     Oregon courts affirm an arbitrator's decision to reinstate an officer who used marijuana and lied about it. Reinstatement does not offend considerations of public policy against drug use or dishonesty, and is consistent with a goal of the rehabilitation of drug users. Washington Co. Police Assn. v. Washington Co., SC#S49518, 335 Ore. 198, 63 P.3d 1167 (2003); decis. on remand, 69 P.3d 767 (Ore. App. 2003).

     Rhode Island court sets aside an arbitration award reinstating a corrections officer that had threatened a coworker with physical harm. Officer had received five disciplinary suspensions in six years. The judge found that the safety of the institution is a "narrow circumstance" where an arbitration award can be set aside. Rhode Island DoC v. R.I. Bro. of Corr. Off. (Giles), #01-6344, 2003 R.I. Super Lexis 53 (2003).

Bargaining Unit Determinations

     Arbitrator concludes that part-time dispatchers should be included in a bargaining unit of full-time police dispatchers, where the state board included them in unit when it first certified the bargaining unit. Belmont Co., Ohio and FOP, 118 LA (BNA) 44 (Harlan, 2003).

Civil Service

     OPM issues a rule allowing federal agencies to hire new workers using a category-based rating system in lieu of the traditional "rule of three" system. U.S. Office of Personnel Management, "Organization of the Government for Personnel Management, Overseas Employment, Temporary and Term Employment, Recruitment and Selection for Temporary and Term Appointments Outside the Register, Examining System, and Training," 68 (114) Fed. Reg. 35265 (6/13/03).

     U.S. Defense Dept. proposes to eliminate guaranteed annual pay raises and General Schedule step increases, and to change the way that government employees are hired, fired and promoted. S.1166. "National Security Personnel System Act," and H.R.1836. "Civil Service and National Security Personnel Improvement Act."

Contracts, Consultants and Outsourcing

     Federal appeals court holds that an FBI informant did not need to get pre-approval of his expenses before he is entitled to claim reimbursement. The implicit approval by case agents and a prosecutor was sufficient to satisfy contractual requirements. Forman v. U.S., #02-5117, 329 F.3d 837 (Fed. Cir. 2003).

Criminal Liability

     Sheriff's firearms instructor sentenced to 16 months in federal prison for stealing ammunition. 50,000 rounds found in his home. U.S. v. Miedzianowski, #1:98cr00923 (N.D. Ill. 2003).

Disciplinary Punishment - In General

     Arbitrator holds that management had just cause to issue a written reprimand to a firefighter who failed to return to work for a scheduled shift. Although his daughter had disappeared, foul play was not suspected and management considered extenuating circumstances in setting the penalty. City of Hallandale Beach and Metro Broward Prof. F/F L-308, AAA Case #32-390-00385-02, 118 LA (BNA) 646 (Smith, 2002).

Discovery, Publicity and Media Rights

     Texas appeals court holds that a police officer's disciplinary record is subject to the state's freedom of information laws. Abbott v. City of Corpus Christi, #03-02-00785-CV, 2003 Tex. App. Lexis 4600 (3rd Dist. Austin, 2003).

Domestic Partner Rights

     Ontario's Court of Appeals strikes down prohibitions against same gender marriages. Ontario begins issuing marriage licenses to Canadian and U.S. same gender couples. Halpern and Attorney General of Canada, #C39172 (Ont. App. 2003). Because Canadian citizenship is not required, U.S. employers and insurance carriers will be faced with requests for marital benefits from gay and lesbian workers who are married in Ontario.

     Domestic partner rights are expected to expand after the U.S. Supreme Court's decision that struck down the Texas sodomy law. Lawrence v. Texas, #02-102, 2003 U.S. Lexis 5013 (2003). The Court held, 6-to-3, that intimate physical relationships between consenting adults are a form of "liberty" that is protected by the Due Process Clause of the Fourteenth Amendment.

Drug Screening and Specimen Testing

     Supreme Court declines to review an Alabama holding that the use of a catheter by an employer, to obtain a urine sample as part of employee drug testing program was not a battery, did not violate the Fourth Amendment, and did not invade the appellant's reasonable expectations of privacy. Nelson v. Coleman, # 02-1533, 2003 U.S. Lexis 4833 (2003); unpublished Ala. Cir. Ct. ruling, summarized at 71 Law Week 3680 (1/29/02).

Employee Harassment - Nonsexual

     Two state capitol security officers fatally shot each other while on duty. Although the woman officer may have been the victim of a hostile work environment, Michigan's civil rights law requires the conduct to be sexual in nature, which this was not. Haynie v. Dept. of State Police, #120426, 2003 Mich. Lexis 1192 (Mich. 2003).

FLSA - Overtime - in General

     Fifth Circuit holds that the FLSA does not require a public employer to authorize comp. time use as specifically requested by an employee. It only requires that the comp. time is allowed within a reasonable period after the employee requests its use. Houston Police Officers Union v. City of Houston, #01-21117, 330 F.3d 298 (5th Cir. 2003).

     The Supreme Court has ruled 9-to-0 that when an employee brings a FLSA suit in state court, the employer can remove the claim to federal court. Breuer v. Jim's Concrete of Brevard, #02-337, 123 S.Ct. 1882 (2003).

Family, Medical & Personal Leave

     Arbitrator holds that a grievant was eligible for "assault leave," even if she did not file the proper form. She also was being treated for "post-traumatic stress disorder/panic attacks with agoraphobia," and the filing of a wrong form did not prejudice the employer. Chicago Bd. of Educ. and Chicago Teachers Union, 118 LA (BNA) 349 (Goldstein, 2002).

Free Speech

Supreme Court declines to review the termination of a NYPD officer who was fired for mailing racist literature. Pappas v. Giuliani, #00-9487, 290 F.3d 143 (2d Cir.); cert. den. sub nom Pappas v. Bloomberg, #02-1441, 2003 U.S. Lexis 5051 (2003).

     Detroit police officer John Bennet was suspended for operating a website critical of the chief, FireJerryO.com Chief Jerry Oliver reportedly told the officer, "We have determined that you are the webmaster and you cannot have a web site and be a Detroit police officer. It has to be one or the other."

Handicap Laws / Abilities Discrimination - In General

     A national survey of 442 employment discrimination cases litigated in 2002 under Title I of the ADA found that employers prevail 94.5 percent of the time in court and 78.1 percent of the time in EEOC hearings. The American Bar Association's Commission on Mental and Physical Disability Law published the survey.

Homosexual & Transgendered Employee Rights

     The Governor of Arizona has issued a directive, which prohibits discrimination in employment "solely on the basis of an individual's sexual orientation." The order also provides that disciplinary action, including termination, can be taken against state employees who engage in sexual or other harassment based on sexual orientation. Executive Order 2003-22 (6/21/2003).

Inefficiency, Performance Standards, Negligence and Incompetence

     Arbitrator ignores progressive discipline schedule and sustains a termination. Long and unblemished service also is not a defense when the employee is fired for incompetence. Incompetence is an exception to progressive discipline tables, because it is not "misconduct." Montana and Mont. Public Employees Assn., 118 LA (BNA) 483 (Prayzich, 2003).

Injuries to Employees

     Federal appeals court holds that the widow of a diabetic prison employee, who became sick at work and was fatally injured in a collision while driving home, is not entitled to collect damages from the government. Stockberger v. U.S., #02-3651, 332 F.3d 479 (7th Cir. 2003).

Last Chance Agreements

     Federal appeals court overturns an ALJ decision that a former alcoholic agent was not in compliance with the Last Chance Agreement. A breach must be a "material" failure or omission. Gilbert v. Dept. of Justice, #02-3278, 2003 U.S. App. Lexis 13417 (Fed Cir. 2003).

Past Practices, Precedents & Zipper Clauses

     Arbitrator holds that management did not violate the bargaining contract when it allowed make-up overtime as a remedy for mistakes in assigning overtime, consistent with a past practice, and there was nothing in the contract authorizing back pay as a remedy. Wackenhut Corrections Corp. and Delaware Co. Prison Emplees., FMCS Case #02/02150, 118 LA (BNA) 389 (Kaplan, 2002).

Product Liability

     New Jersey court jury awards $1.5 million for past and future earnings losses, and $400,000 for pain and suffering, to the widow of a Paramus police officer that was killed when his Crown Vic spun into a utility pole. The plaintiff claimed the manufacturer knew of a steering defect and had failed to correct it. Brock v. Ford Motor Co., Super.Ct. Bergen Co. N.J. (verdict July 3, 2003).

Promotional Rights, Procedures and Performance Appraisals

     Persons who had completed their probationary period as newly promoted sergeants had a property interest in that rank, and could only be demoted for cause, even if the promotions were invalid because of an improperly conducted assessment process. Barnthouse v. Edmond, #97350, 2003 OK 42, 2003 Okla. Lexis 45 (2003).

     Wisconsin police and fire chiefs may promote officers on a probationary basis. Kraus v. City of Waukesha Police and Fire Cmsn., #01-1106, 2003 WI 51, 662 N.W.2d 294 (2003).

Race: Affirmative Action & Quotas

     In a school admission case, the Supreme Court (5-to-4) allows race as one of several factors for candidate selection; Grutter v. Bollinger, #02-241, 156 L.Ed.2d 304, 2003 U.S. Lexis 4800 (2003). The justices also held (6-to-3) that arbitrarily assigning 20 of 100 possible points to every single "underrepresented minority" applicant violated the equal protection clause; Gratz v. Bollinger, #02-516, 2003 U.S. Lexis 4801 (2003).

Race Discrimination - In General

     Federal appeals court overturns a jury award of punitive damages in a race discrimination lawsuit, alleging a failure to promote. The employer had, in good faith, implemented an EEO policy and a diversity-training program. Bryant v. Aiken, #02-2147, 2003 U.S. App. Lexis 13040 (4th Cir. 2003).

Religious Discrimination

     Seventh Circuit sustains the firing of a police officer that refused to work at a casino because he views gambling as a sin. Endres v. Indiana State Police, #02-1247, 2003 U.S. App. Lexis 13027 (7th Cir. 2003).

Residency - Continuing Requirements

     Illinois appellate court affirms an interest arbitration award, which overrides a town residency ordinance. A residency requirement is a bargainable issue in municipalities outside Chicago. Town of Cicero v. IAFF L-717, #1-01-3931, 788 N.E.2d 286 (1st App. Dist. 2003).

     Massachusetts appellate court allows a city and union to agree to a residency requirement for all newly hired officers, and exempting current employees. Brockton Police Assn. v. City of Brockton, #01-P-932, 57 Mass.App.Ct. 671, 785 N.E.2d 702 (2003).

Retirement Rights and Benefits

     Effective in June 2003, federal agencies now have the option of offering voluntary early retirement to employees for the purposes of restructuring or downsizing under guidance issued by the U.S. Office of Personnel Management. "Voluntary Early Retirement Under the Homeland Security Act of 2002," 68 (114) Fed. Reg. 35270 (6/13/03).

Sexual Harassment - Verdicts, Settlements & Indemnity

     Sheriff's investigator awarded $500,000 against the county and $200,000 against a superior who allegedly put his face in the plaintiff's crotch, and twice bit her on the buttocks. Kessel v. Cook County, #1:00cv03980 (N.D.Ill. 2003).

Sick Leave & Abuse

     A prison rule requiring employees who have been away for four or more days to submit a medical certification, that includes a brief diagnosis, violates the ADA, which prohibits any inquiry into a disability, unless job-related and consistent with business necessity. To establish the business necessity defense, an employer must show that the request is vital to the business and the information is no more intrusive than is necessary. Conroy v. N.Y. St. Dept. of Corr. Serv., #02-7415, 2003 U.S. App. Lexis 12014 (2nd Cir. 2003).

Stress Related Claims and Defenses

     The New Jersey Supreme Court revives the workers' comp. claims filed by two police employees who suffered work-related, delayed onset, post traumatic stress disorder. PTSD can be either a disease or an accident. Brunell v. Wildwood Crest Police Dept., #A-126/127 Sept. Term 2001, 176 N.J. 225, 822 A.2d 576(N.J. 2003).

Suicide Related

     Second Circuit overturns the summary dismissal of a claim that a public employee was fired because her superiors thought she might be suicidal. Suicide is a mental illness and a protected disability under the Rehabilitation Act. Peters v. Baldwin School Dist., #02-7018, 320 F.3d 164 (2nd Cir. 2003).

Uniforms, Clothing and Equipment

     In a companion decision to Endres v. Indiana State Police (See Religious Discrimination, above) a three-judge panel upheld a disparate treatment complaint filed by an Islamic female public employee who was told she could not wear a geles (headwrap) at work. Holmes v. Marion County, #02-1377, 2003 U.S. App. Lexis 13027 (7th Cir. 2003).

Union and Associational Activity

     Tenth Circuit allows payroll checkoff deductions of "permit fees" assessed against newly hired workers. Courts have consistently interpreted "membership dues" broadly to include initiation fees and other assessments of employees by their unions. NLRB v. Okla. Fixture Co., #01-9516, 2003 U.S. App. Lexis 12287 (10th Cir. 2003).

Union's Duty of Fair Representation

     Union was not required to pursue arbitration of a grievance where one correctional employee sought a position wanted by another employee with more seniority. A union is not obliged to arbitrate a claim with little merit, especially when it would put one union member against another. DiGuilio v. R.I. Bro. of Corr. Off., #2001-611, 819 A.2d 1271 (2003).

Whistleblower Requirements and Protection

     Federal appeals court rejects claims of a railroad watchman, who alleged that he was fired because of the criminal acts of his supervisor. There was testimony that the watchman had threatened violence and used drugs. More importantly he failed to report his superior's alleged criminal conduct to anyone in authority. Rivera v. Natl. R.R. Pass. Corp., #01-16232, 331 F.3d 1074 (9th Cir. 2003).

     N.J. police officer, who claimed seven years of harassment from fellow officers, after he reported possible misconduct, wins over $3 million in damages, including $2 million for pain and suffering. Pisano v. Twp. of Parsippany, #MRS-L-002351-97 (Morris Co., N.J. Super. Ct. 2003).

Wrongful Discharge - In General

     Maryland holds that an employee's request to consult an attorney before signing an acknowledgment of an unfavorable evaluation was not protected conduct. The right of access to legal counsel in Maryland is not a mandate of public policy to support a wrongful discharge lawsuit. Porterfield v. Mascari II Inc., #14 Sept. Term 2002, 823 A.2d 590 (Md. 2003).

Wrongful Discharge/Discipline: Damages & Settlements

     Federal court awards $1,268,087 to 274 former housing authority police officers who were permanently furloughed without the 60-day pretermination notice required in the federal Worker Adjustment and Retraining Notification Act (WARN), 29 U.S. Code §2101 et seq. Although government entities are exempt, there is an exception for public housing authorities. Castro v. Chicago Hous. Auth., #99C6910 and Rowan v. Chicago Hous. Auth., #00C5557, verdicts (N.D.Ill. 2003). Prior opins. in Castro at 2002 U.S. Dist. Lexis 19769 and in Rowan at 149 F.Supp.2d 390.

Access to Courts/Legal Info

     Prisoner had no constitutional right of access to probate court which was violated by prison officials' alleged actions in not allowing him to retrieve legal papers from his locker before he was transported to the court for personal business there. His protected constitutional right of access to the courts only extended to direct appeals or habeas corpus applications in criminal cases and civil rights claims. Plaintiff prisoner also failed to show that a warden's decision to transfer him was retaliatory for his letter of complaint over the incident, rather than, as asserted, based on concern for his safety after he was assaulted by other prisoners. Lewis v. Randle, No. 02-4297, 66 Fed. Appx. 560 (6th Cir. 2003).

     Prisoner's right of access to the courts was not violated by the failure to photocopy 1,800 pages of documents in support of his petition for post-conviction relief when he suffered no detriment based on the failure to attach the voluminous documentation. He was previously informed that the petition would be accepted without the attachments and the court actually reviewed the documents and found them to be mostly inadmissible and duplicative of other court records, and ultimately dismissed the petition on other grounds. Drennon v. Hales, No. 27926, 70 P.2d 688 (Idaho App. 2003).

     Florida court declines to adopt a "reverse mail box" rule under which the time deadlines for a prisoner to file court documents would begin to run from the time a document was actually delivered to a prisoner by prison officials. Ashley v. State of Florida, 845 So. 2d 1008 (Fla. App. 5th Dist. 2003).

AIDS Related

     Deputy's statement to prisoner, in front of other inmates, revealing his HIV status did not violate his constitutional rights. Federal trial court holds that there is no general fundamental constitutional right to privacy for personal medical information and that any judgment about whether such information should be protected must be left to legislative action. Sherman v. Jones, 258 Fed. Supp. 2d 440 (E.D. Va. 2003).

Chemical Agents

     Jury verdict in favor of correctional officers' use of tear gas against prisoners locked in their cells during prison riot upheld. Plaintiff prisoners were not entitled, in the absence of a showing of "bad faith," to instructions to the jury that would have allowed it to infer that "missing evidence" such as video footage of the gassing incident would have been unfavorable to the defendant officers. Beaudry v. Corrections Corporation of America, No. 02-6073, 331 Fed. 3d 1164 (10th Cir. 2003).

Drugs and Drug Screening

     Failure of correctional officials to provide a prisoner with the actual lab reports resulting from his random drug test at his disciplinary hearing did not violate his due process rights. Vermont Supreme Court upholds "zero tolerance" policy against use of illegal drugs. Correctional officials need not set a "threshold level" for indications of drug use found in inmate's urine to convict him of rule violation. King v. Gorczyk, No. 02-180, 825 A.2d 16 (Vt. 2003).

     Substantial evidence supported a disciplinary determination that a prisoner had violated rules against possession of controlled substances when a correctional officer testified that a bag, containing heroin and attached to a drag line, was seen hanging outside the prisoner's cell, the chain of custody of the prisoner's urine sample was adequate, and the proper drug testing procedures were followed. Davis v. Selsky, 759 N.Y.S.2d (A.D. 3d Dept. 2003).

Employment Issues

     Dispute over whether county violated the terms of a collective bargaining agreement by requiring correctional officers to dispense medication to prisoners was subject to arbitration under Illinois state law regardless of whether or not the disputed job assignments were legal under a state controlled substances law. Any exclusion from arbitration has to be expressly stated in a public employees' collective bargaining agreement under the Illinois Public Labor Relations Act, 5 ILCS 315/8. Rock Island County Sheriff Grchan v. AFSCME, AFL-CIO, Local 2025, #3-03-0052, 791 N.E.2d 57 (Ill. App. 3d Dist. 2003).

Funeral Attendance and Prisoner Burial Issues

     Public cemetery commissioners did not violate Massachusetts' prisoner's rights to equal protection under the state constitution or state statutes by denying his request to purchase a burial plot for himself in the same cemetery in which his wife, who he was convicted of murdering, was buried. LaCava v. Lucander, No. 01-P-549, 791 N.E.2d 358 (Mass. App. 2003).

Inmate Funds

     Prisoner's rights were not violated by actions prohibiting him from using his account funds to purchase personal hygiene products when he received a monthly "indigency package" containing hygiene products which contained what was absolutely necessary for personal hygiene. His inability to purchase over-the-counter medications for his headaches also did not amount to cruel and unusual punishment. Stolte v. Cummings, No. 89,229, 70 P.3d 695 (Kan. App. 2003).

     Florida statutes making prisoners liable for $50 per day for the portion of their sentences remaining after the effective date of the statutes was not a violation of their due process rights or the prohibition on ex post facto laws that increase criminal punishments retroactively. The purpose of the statutes was not punishment but rather the reimbursement of public funds spent on the prisoners, who had no vested right to free room and board. Goad v. Florida Department of Corrections, No. SC00-785, 845 So. 2d 880 (Fla. 2003).

Medical Care

     Louisiana appeals court upholds award of $85,000 to daughter of prisoner who died after being transported to the hospital. Sheriff's employee, during transport of prisoner, allegedly failed to follow doctor's instruction to give inmate oxygen, and did not attempt to clear his airway after the prisoner vomited during CPR. Johnson v. Foti, No. 2002-CA-1995, 844 So. 2d 1050 (La. App. 2003).

     Prisoner's liver problems and alleged "bashful bladder syndrome" were not sufficiently serious to show that nurse was deliberately indifferent to his serious medical needs by approving him for assignment to an "arduous" field work job. Pate v. Peel, 256 F. Supp. 2d 1326 (N.D. Fla. 2003).

Overcrowding

     Correctional officer had no right to intervene as a party in litigation alleging that the correctional facility in which he worked had overcrowded and unsafe conditions. His asserted interest in avoiding the risk of future civil liability which might result from the need to take "drastic measures" to maintain order was "purely a matter of speculation" about the occurrence of a "long sequence of" future events. Laube v. Campbell, 217 F.R.D. 655 (M.D. Ala. 2003).

Parole

     Prisoners challenging the procedures used to determine parole eligibility and suitability could pursue their claims as a federal civil rights lawsuit rather than a habeas corpus petition. Prisoners did not claim an immediate entitlement to parole, but rather that the parole board comply with what they claimed was the law in making parole determinations. Dotson v. Wilkinson, No. 00-4033, 329 F.3d 464 (6th Cir. 2003).

     Parole Board's consideration of negative letters from prosecutors did not violate prisoner's due process rights, but further proceedings are ordered on whether prisoner's attorney was not notified of parole hearing. Parole Board's actions of delaying a hearing or assigning the prisoner to the highest parole offense category were not in retaliation for the prisoner's filing of federal litigation, but rather were in response to his lawyer's request and the application of appropriate legal factors respectively. Buhrman v. Wilkinson, 257 F. Supp. 2d 1110 (S.D. Ohio. 2003).

Prison Litigation Reform Act: Attorneys' Fees

     Attorneys' fee restrictions imposed by the Prison Litigation Reform Act apply to all lawsuits filed by a prisoner, not just those that challenge prison conditions. Federal appeals court rules that they also apply to a civil rights lawsuit challenging the denial of parole or otherwise challenging the length of confinement. Court also rejects equal protection challenge to the statute, and rules that it allows for the awarding of attorneys' fees on work done litigating attorneys' fees issues (so-called "fees on fees"). Jackson v. State Board of Pardons and Paroles, No. 02-15545, 331 F.3d 790 (11th Cir. 2003).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prison officials were entitled to amend their response to inmate's lawsuit claiming that correctional employees assaulted him to assert a defense of failure to exhaust available administrative remedies. While they were aware of the defense earlier, the law was not clear that it applied to the circumstances of this lawsuit prior to the U.S. Supreme Court's decision in Porter v. Nussle, 534 U.S. 516 (2002), ruling that 42 U.S.C. Sec. 1997e(a)'s requirement of exhaustion of remedies applies to all prisoners "seeking redress for prison circumstances or occurrences." Livingston v. Piskor, 215 F.R.D. 84 (W.D.N.Y. 2003).

     While the failure of prison officials to respond in a timely fashion to a prisoner's grievance might show, in some instances, that the prisoner had sufficiently exhausted available administrative remedies, the plaintiff prisoner failed to present evidence that he was "hampered" in this case by an untimely response, so trial court's dismissal of his lawsuit was appropriate. Sergent v. Norris, No. 02-4142, 330 F.3d 1084 (8th Cir. 2003).

     Inmate who completed only the first step of a multi-step jail grievance procedure failed to satisfy the requirements of the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e, that he exhaust available administrative remedies before filing his lawsuit seeking damages for an allegedly unreasonable body cavity search. Morgan v. Maricopa County, 259 F. Supp. 2d 985 (D. Ariz. 2003).

Prisoner Assault: By Inmate

     Jail guards on duty at the time that a inmate with a history of violent outbursts and mental instability killed a pretrial detainee were not entitled to qualified immunity from liability for failure to protect the decedent when they allegedly knew that the assailant posed a serious risk of harm to fellow prisoners. Supervisory personnel, however, had no knowledge that guards were failing to monitor assailant, as required. Cottone v. Jenne, #02-14529, 326 F.3d 1352 (11th Cir. 2003).

     Prison employees were not liable for alleged failure to protect inmate from assaults by prison gang members when they each responded to his complaints about threats and assaults by making reports to supervising officers, conducting investigations, or informing appropriate officials so that the alleged problem could be investigated. Thompson v. Eason, 258 F. Supp. 2d 508 (N.D. Tex. 2003).

Prisoner Assault: By Officers

     Federal appeals court rules that correctional officers' use of force in restraining detainee, which resulted in his death from a compression injury to his neck, was not excessive. The detainee was an "exceptionally large and strong" man and evidence showed that he became violent in his cell and after he was let out of his cell. Further, there was no evidence that the officers intentionally attempted to choke the prisoner. Walters v. County of Charleston, No. 02-1297, 63 Fed. Appx. 116 (4th Cir. 2003).

Prisoner Death/Injury

     Prisoner injured from a slip and fall on a wet floor in county jail failed to show that correctional officers actually knew that there was water on the floor, or that the water had remained there for any substantial period of time, as required for him to recover damages for his resulting injuries. Heliodore v. State of New York, 759 N.Y.S.2d 554 (A.D. 3d Dept. 2003).

Prisoner Discipline

     The proper focus in deciding whether a prisoner was entitled to due process protection before being sentenced to confinement in a special housing unit, a federal appeals court rules, was the number of days in the sentence, not the number of days the prisoner actually wound up serving. Denial of qualified immunity to defendant correctional officials upheld in prisoner's lawsuit over his sentence to ten years in special housing unit. Hanrahan v. Doling, #02-0169, 331 F.3d 93 (2nd Cir. 2003).

     Prison disciplinary committee hearing officer needed to make specific findings as to why he found that the materials a prisoner was being punished for possessing were "gang-related." Additionally, findings were required to determine if the prisoner had, as he claimed, been previously disciplined for possessing the same materials, which were allegedly confiscated from him and then returned to him. Balagun v. New Jersey Dept. of Corrections, 824 A.2d 1109 (N.J. Super. A.D. 2003).

     Prison disciplinary and grievance committees in Illinois were not required to follow the requirements of the state Administrative Procedure Act, 5 ILCS 100/1-1 et seq. in conducting their hearings and other proceedings, so that alleged failure to do so in connection with revocation of prisoner's good-time credits did not violate his state statutory rights or his right to constitutional due process. Ratliff-El v. Briley, No. 3-01-0727, 789 N.E.2d 781 (Ill. App. 3d Dist. 2003).

     Prisoner's conviction of a disciplinary offense of possessing tobacco in violation of prison rules was supported by some evidence, based on correctional officer's filed report that she observed him with a baggy of what appeared to be tobacco, which was sufficient to uphold the discipline imposed. Disciplinary proceeding provided adequate due process even though another prisoner involved in the same incident was not convicted. Graham v. Vannatta, No. 02-3155, 64 Fed. Appx. 575 (7th Cir. 2003).

     Prisoner who did not argue in his administrative appeals of loss of good time credits that his requests to call witnesses were refused could not raise that argument for the first time in federal habeas corpus proceeding. Morrow v. Vannatta, No. 02-1837, 64 Fed. Appx. 553 (7th Cir. 2003).

Prisoner Suicide

     Jail inmate's suicide was an unforeseen incident which could not be shown to have taken place because of the failure of officers to regularly conduct surveillance of his cell, when he acted "calm and controlled" before he took his own life, and his behavior did not show that he might be a danger to himself. Harvey v. Nichols, No. A03A0568, 581 S.E.2d 272 (Ga. App. 2003).

Procedural: Discovery

     Prisoner asserting that prison officials interfered with his access to the courts and retaliated against him for filing lawsuits must identify, in response to interrogatories, what lawsuits he is referring to, when his complaint and its exhibits were "devoid" of such information. Davidson v. Goord, 215 F.R.D. 73 (W.D.N.Y. 2003).

Procedural: Evidence

     Plaintiff prisoner who sued correctional employees for alleged failure to protect him from stabbing by another prisoner could not object on appeal to the admission of evidence that he was labeled a "homosexual predator" on correctional records when his own lawyer made a "strategic decision" to allow the jury to learn that in order to lessen any "negative impact the information may have had if left unexplained." Gibbs v. Bolden, No. 02-1560, 65 Fed. Appx. 519 (6th Cir. 2003).

Public Protection

     County sheriff did not act as an agent or employee of the state when he allegedly released a state prisoner unlawfully before he had fully served his sentence, barring a claim for wrongful death against the state under the Governmental Tort Liability Act, T.C.A. Secs. 8-8-201(3) by a mother for the released prisoner's subsequent shooting and killing of her son. Cooper v. State of Tennessee, 106 S.W.2d 688 (Tenn. App. 2003).

Religion

     A temporary denial of access to congregational religious services and programs while a prisoner was in segregation on a later expunged disciplinary conviction was not a significant deprivation of his rights sufficient to support a federal civil rights claim. Fiorentino v. Biershbach, No. 02-3158, 64 Fed. Appx. 550 (7th Cir. 2003).

Sexual Assault

     Female jail inmate who said she was sexually assaulted by a correctional officer could pursue claims against the county and its sheriff based allegations that sexual relationships at the facility between correctional officers and female inmates were "so widespread" that policy-makers had "constructive knowledge" of them but did nothing to remedy the situation. Faas v. Washington County, 260 F. Supp. 2d 198 (D. Me. 2003).

     Congress passes new federal statute: the Prison Rape Elimination Act of 2003.

Strip Search: Prisoners

     County jail's "clothing exchange" procedure, which resulted in officers viewing prisoners in a state of undress as they changed from street clothes into jail uniforms, did not violate pre-trial detainee's Fourth Amendment rights. Federal appeals court upholds the reasonableness of the procedure even in the absence of a particular suspicion that the detainee had weapons or contraband. Stanley v. Henson, #02-2806, 2003 U.S. App. Lexis 14962 (7th Cir. 2003).

     Inmates stated a valid claim against jail for violation of their Fourth and Fourteenth Amendment rights based on an alleged policy of conducting strip searches upon prisoners who returned to the jail after receiving release orders. The prisoners were returned to the jail after a court ordered their release to await the results of a search for additional criminal charges against them. Bynum v. District of Columbia, 257 F. Supp. 2d 1 (D.D.C. 2002).

Transsexual Prisoners

     Prisoner suffering from gender identity disorder stated a claim for inadequate medical treatment based on alleged indifference to their need for protection against self-mutilation following the withdrawal of hormone therapy. De'Lonta v. Angelone, #01-8020, 330 F.3d 630 (4th Cir. 2003).