© Copyright 2004 by AELE, Inc.
Contents (or partial contents) may be downloaded,
stored, printed or copied by, or shared with, employees of
the same firm or government entity that subscribes to
this library, but may not be sent to, or shared with others.

of articles online at www.aele.org/law from the April 2004

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

Summaries from the April 2004

Assault and Battery: Physical

     Police officers who participated in the execution of a search warrant, but were not accused of use of physical force against a resident of the premises being searched could not be held "derivatively" liable for the actions of an officer who the plaintiff claimed struck him. Claims against these officers were therefore properly dismissed before jury trial which returned a verdict in favor of the remaining defendant officer. Willis v. Freeman, No. 02-1757. 93 Fed. Appx. 803 (7th Cir. 2003).

     Motorist who asserted claims for assault and battery and negligence against officer he claimed pulled him out of his car and beat him failed to make a case for a separate claim of negligence, requiring the court to overturn a jury verdict in his favor on the negligence claim. (The jury returned a verdict for the officer on the assault and battery claim). The conduct alleged was intentional conduct by the officer, and the plaintiff failed to allege any "negligence" other than the purported use of excessive force. District of Columbia v. Chinn, 839 A.2d 701 (D.C. 2003).

     Dispute as to whether police officer intentionally used his car to run down suspect in order to arrest him or whether, as officer argued, he was only positioning his patrol car so that he could exit the vehicle and pursue the suspect on foot, when the suspect ran into the patrol car, made trial court's dismissal of arrestee's lawsuit inappropriate. Day v. Rogers, 71 Fed. Appx. 337 (5th Cir. 2003).

     Trial judge's refusal to give jury instructions concerning the plaintiff's degenerative disc disease which purportedly made him more prone to injuries such as ruptured discs as a result of allegedly being stomped or kicked by officers was no basis for a new trial in his excessive force lawsuit. Rejected instructions related to the issue of damages to be awarded, which the jury did not even need, as they returned a verdict in favor of the defendant officers, rejecting the claim that excessive force had been used. Dawson v. Page, 286 F. Sup. 2d 617 (M.D.N.C. 2003).

Attorneys' Fees: For Plaintiff

     Arrestee who was awarded $1 in nominal damages on his claim that a police officer improperly arrested him for exercising his freedom of speech in putting him under arrest for disorderly conduct after he shouted at the officer for refusing to move his illegally parked personal vehicle was a prevailing party entitled to an award of attorneys' fees under Massachusetts state statute. Trial court awarded $45,451.36 as reasonable attorneys' fees and expenses. Norris v. Murphy, 287 F. Supp. 2d 111 (D. Mass. 2003).

Defenses: Indemnity

     Plaintiff awarded damages against police officer in federal civil rights lawsuit did not have the ability, after officer withdrew his demand for indemnification from the county, to pursue the application for indemnification on his own behalf. Lampkin v. Little, No. 03-7000, 85 Fed. Appx. 167 (10th Cir. 2004).

Defenses: Notice of Claims

     Police officer seeking to sue city for failing to provide him with proper respiratory or protective equipment, causing him to be injured by exposure to toxic substances in the course of his work related to the rescue and recovery operations from the September 11, 2001 attack on the World Trade Center adequately showed a reasonable excuse for his delay in filing the required notice of claim, and that the city had knowledge of the essential facts of his claim given the circumstances of destruction stemming from the attack, the well-publicized allegations of toxic substances in the smoke and debris, and the similar health claims made by many rescue workers. O'Halloran v. City of New York, 770 N.Y.S.2d 583 (Supreme Court, N.Y. County, 2003).

Defenses: Qualified Immunity

     Officer had at least arguable probable cause to arrest mother for obstruction of justice when she refused to let him in to serve court order concerning custody of her youngest child, which was based on allegations of neglect. Officer was entitled to qualified immunity, and there was no clearly established law against him attempting to gain entrance by a ruse that he merely needed to hand her the papers, without revealing that he would immediately also take the child into custody under the terms of the order. Storck v. City of Coral Springs, No. 02-16956, 354 F.3d 1307 (11th Cir. 2004).

Defenses: Statute of Limitations

     A three-year statute of limitations under New York state law for alleged constitutional violations in connection with the arrest of a minor did not start to run until the plaintiff turned 18, so that her claim was timely filed, and would not be dismissed. Perez v. County of Nassau, 294 F. Supp. 2d 386 (E.D.N.Y. 2003).

Disability Discrimination

     Commissioner of Minnesota state Department of Public Safety was entitled to official immunity against lawsuit by disabled individual claiming that fees which are charged for a disabled parking permit violated a state disability discrimination statute. Podruch v. State Department of Public Safety, No. A03-809, 674 N.W.2d 252 (Minn. App. 2004).

False Arrest/Imprisonment: No Warrant

     Ticket scalpers arrested by Milwaukee police outside sports arena and kept in custody for between three to fourteen hours for processing did not show any violation of their civil rights, despite the fact that violation of the ticket scalping ordinance was punishable only by a fine. Chortek v. City of Milwaukee, No. 03-1329, 356 F.3d 740 (7th Cir. 2004).

     There was no probable cause to arrest a husband for violation of a domestic protection order for attending church services at the same church his wife attended, since that was not prohibited by the order. Officer who did not read the order or otherwise attempt to ascertain its contents was not entitled to qualified immunity. Beier v. Lewiston, #02-35516, 354 F.3d 1058 (9th Cir. 2004).

     Officers had probable cause to arrest suspect when complaining witness stated that the arrestee had stabbed him several times with an awl during an argument and that the arrestee was the aggressor. Additionally, the arrestee's subsequent indictment for assault created a presumption of probable cause for the arrest which the plaintiff arrestee failed to overcome in his false imprisonment and malicious prosecution lawsuit. Jenkins v. City of New York, 770 N.Y.S.2d 22 (A.D. 1st Dept. 2003).

     State trooper who had probable cause to arrest motorist for driving under the influence of alcohol (DUI) was entitled to summary judgment in motorist's subsequent false arrest lawsuit, even if he did not have probable cause for other offenses charged, such as leaving the scene of an accident or driving at an unsafe speed. "Probable cause is not needed on each and every offense that could be charged, probable cause is only needed for one of the offenses that may be charged under the circumstances." Ankele v. Hambrick, 286 F. Supp. 2d 485 (E.D. Pa. 2003).

Firearms Related: Intentional Use

     Maryland jury awards $105 million in damages to family of unarmed man shot and killed by Baltimore police officer. While officer claimed the man was holding a gun and turning towards him, evidence in the case led to the officer subsequently pleading guilty to murder charges. The shooting allegedly occurred because the officer believed the man was having an affair with his wife. Estate of Little v. Price, No. 24-c-02-000997 (Baltimore City, Md., Cir. Ct.), reported in The National Law Journal, page 20 (February 9, 2004).

     Federal appeals court upholds jury award of $1 million to arrestee who was shot in his bed by an officer, allegedly with his hands up, while in possession of a shotgun in his lap. Mere possession of a weapon, without any indication that a suspect is going to use it, is an insufficient basis for the use of deadly force. Robinson v. Nolte, No. 02-55094, 77 Fed. Appx. 413 (9th Cir. 2003).

     County was not liable for police officer's shooting of suspect who had taken hostages in his car, even if he had his hands up when he was shot, when the suspect and his accomplice were known to be armed and the suspect allegedly quickly opened the car door and lunged out so that the officer could not see his right hand at the time he fired. County review board reasonably decided that officer's shooting did not violate police department's use of force rules. Kanae v. Hodson, 294 F. Supp. 2d 1179 (D. Hawaii 2003).

Firearms: Licenses and Regulations

     Statute prohibiting firearms purchase by persons convicted of crimes punishable by more than one year of imprisonment was not designed to punish, but was aimed at promoting public safety, so that its retroactive application did not impermissibly increase the plaintiff's punishment. Plaintiff, who was convicted in 1962 of a larceny charge based on stealing beer worth $3.38, and was denied the right to purchase a rifle thirty-eight years later on the basis of that conviction, could still pursue a claim that the statute was unconstitutional as applied to him, so further proceedings are ordered on that claim, which the lower court improperly dismissed. Lehman v. Pennsylvania State Police, 839 A.2d 265 (Pa. 2003).

Freedom of Information

     Audio tapes and transcripts of 911 calls made relating to the September 11, 2001 attacks on the World Trade Center were not exempt from disclosure under New York's Freedom of Information Law, McKinney's Public Officers Law Sec. 87. New York Times Company v. City of New York Fire Department, 770 N.Y.S.2d 324 (A.D. 1st Dept. 2004).

     FBI had no duty under the Freedom of Information Act, 5 U.S.C. Sec. 552, to attempt to reconstruct and produce documents that had previously been destroyed, and the identities and photos of FBI special agents, suspects, and witnesses in the highly-publicized kidnapping of the plaintiff's mother were protected from disclosure under an exemption for law enforcement information that could constitute an unwarranted invasion of privacy. Documents relating to sources of information, which could disclose the identity of a confidential source were also exempt from disclosure, despite the fact that the kidnapping occurred over 30 years ago, when the convictions relating to the kidnapping had been overturned and no other charges relating to the crime had been filed. Information concerning an electronic device used for monitoring purposes was also exempt from disclosure, since revealing the identity of the device used would permit individuals being investigated to take countermeasures to avoid detection. The FBI could not, however, withhold a photo of an allegedly "government-doctored" fingerprint and related material, which the plaintiff asserted meant that the government tampered with evidence in the case. Piper v. U.S. Department of Justice, 294 F. Supp. 2d 16 (D.D.C. 2003).

Governmental Liability: Policy/Custom

     Plaintiffs failed to present evidence that any city policy or custom was responsible for police detective's alleged misconduct in illegally entering and searching their home, making an arrest of one resident, and using excessive force in doing so, barring any federal civil rights claim against the city. Griffin v. City of New York, 287 F. Supp. 2d 392 (S.D.N.Y. 2003).

Insurance

     A city's sovereign immunity limiting liability for the negligence of a driver of a government vehicle except to the extent of insurance purchased did not prevent the recovery, by injured parties, of underinsured motorist benefits under their own auto insurance policy, despite a policy requirement to show damages "due by law" and a legal right to recover damages. Supreme Court of Kentucky rules that the insurer's attempt to exclude government-owned vehicles from the definition of "underinsured" vehicles was void under Kentucky state law. Nationwide Mutual Insurance Company v. Hatfield, No. 2001-SCk-0969-DG, 122 S.W.3d 36 (Ky. 2003).

     An arrestee who was suing several cities and police officers to recover damages for alleged misconduct, including false arrest, in the course of an investigation into alleged "scams" to defraud elderly women was entitled under Louisiana law to add a city's liability insurance carrier as a defendant and was entitled to a jury trial against the insurer. A state law prohibition against a jury trial on claims against a political subdivision did not apply to the political entity's liability insurer. Smith v. City of Lake Charles Police Department, No. 03-155, 858 So. 2d 869 (La. App. 3d Cir. 2003).

Malicious Prosecution

     FBI agents were not entitled to either absolute or qualified immunity on claims that they essentially "framed" a former informant on charges of kidnapping and murder by arranging for false evidence against him which led to convictions and sentences of life imprisonment and death respectively, which subsequently were overturned. Plaintiff claimed that these actions were in retaliation for his decision to stop being an informant. Manning v. Miller, #02C372, 355 F. 3d 1028 (7th Cir. 2004).

Medical Care

     Officer acted reasonably in not interfering with forcible blood and urine tests imposed on DUI arrestee by hospital doctor after he concluded that she was not competent to refuse consent and needed medical treatment to prevent the possibility of a drug overdose. Estate of Allen v. City of Rockford, No. 02-1873, 349 F.3d 1015 (7th Cir. 2003).

Negligence: Vehicle Related

     Genuine issues of fact concerning whether funeral director arranged with sheriff's office for a police escort for a funeral procession, and whether the sheriff had a duty to provide such an escort made summary judgment for the sheriff inappropriate in a lawsuit brought by a motorist in the procession injured in a collision with another driver, claiming that the sheriff was negligent in failing to provide such an escort. Siripanyo v. Allstate Indemnity Company, No. 03-559, 862 So. 2d 1254 (La. App. 3d Cir. 2003).

Off-Duty/Color of Law: Vehicle Related

     New York intermediate appellate court upholds $321,000 jury award against city to motorist allegedly knocked to the ground and punched in the face by an off-duty police officer after he rear-ended the officer's vehicle. Evidence was sufficient to show that the officer was acting within the scope of his employment and used excessive force when the officer requested the motorist's driver's license and detained him for up to half an hour until other police arrived. Graham v. City of New York, 770 N.Y.S.2d 92 (A.D. 2nd Dept. 2003).

Public Protection: Disturbed/Suicidal Persons

     Police officers were not entitled to qualified immunity in lawsuit brought by family of mentally ill man they shot and killed while he was driving his vehicle towards a toll plaza. Plaintiffs claimed that the officers shot him multiple times at close range and continued firing after all officers were out of the way of his vehicle, intending to hurt or kill him. Waterman v. Batton, 294 F. Supp. 2d 709 (D. Md. 2003).

Public Protection: Informants

EDITOR'S CASE ALERT:

     Federal appeals court finds that police sergeant and city were not liable for death of informant, murdered by gang members after he cooperated by furnishing information about their involvement in a prior gang killing. Sergeant, city, and prosecutor provided assistance to help informant leave town until he had to testify, and could not have foreseen that he would choose to remain in town (or return there), only to be killed in retaliation for his actions. Gatlin v. Green, #02-3705, 2004 U.S. App. Lexis 4864 (8th Cir. 2004).

Pursuits: Law Enforcement

     Any recklessness by one officer in continuing pursuit of vehicle after it spun out of control and hit a guardrail was "superseded" under Georgia state law by the actions of a second officer, from another city, in accelerating the speed of the pursuit to over 100 miles per hour at close range to pursued car. First officer and the city which employed him, therefore, were entitled to summary judgment in wrongful death claim made by family of driver of oncoming vehicle struck and killed by pursued car. City of Pooler v. Edenfield, No. A03A1538, 587 S.E.2d 408 (Ga. App. 2003).

RICO

     The alleged damage to an arrestee's ability to earn a living that stemmed from a purportedly false charge and false conviction for assault with a deadly weapon did not qualify as an injury to "business or property" as required to establish a claim for damages against a police officer under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1961, et seq. Diaz v. Gates, #02-56818, 354 F.3d 1169 (9th Cir. 2004).

     Municipalities could not have the required "criminal intent" needed to show a "pattern of racketeering activity" under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1961, et seq., and a plaintiff traffic flagging service failed to show commission of predicate criminal acts by police union presidents, so court orders dismissal of RICO lawsuit against municipalities and presidents claiming that plaintiff lost contracts because of ordinances giving law enforcement officers the exclusive right or right of first refusal on contracts to provide traffic control services. Interstate Flagging, Inc. v. Town of Darien, 283 F. Supp. 2d 641 (D. Conn. 2003).

Search and Seizure: Home/Business

     Factual issues concerning whether officer's search of man's residence, yard, and barn in an effort to locate a woman purportedly involved in a domestic dispute with him was justified by exigent circumstances or the plaintiff's consent barred summary judgment on the basis of qualified immunity in the man's civil rights lawsuit. Colao v. Mills, 770 N.Y.S.2d 474 (A.D. 3d Dept. 2004).

     Motorcycle club whose documents and records were lawfully seized by state law enforcement from their clubhouse had no reasonable expectation of privacy in those materials following the seizure, federal appeals court rules, upholding dismissal of civil rights claim against federal agent to whom those materials were subsequently turned over pursuant to an administrative subpoena. Motorcycle club, therefore, had no constitutional right to notice and an opportunity to contest the subpoena. Hell's Angels Motorcycle Corporation, No. 02-15215, 354 F.3d 1000 (9th Cir. 2004).

Search and Seizure: Person

     Police officer was entitled to qualified immunity for making investigatory stop of woman even if based merely on suspicion of possession of gun, which is not necessarily a crime, when investigatory stop and search occurred prior to U.S. Supreme Court decision clearly establishing the law on the issue. He was not, however, entitled to qualified immunity on the manner in which the stop was carried out, using a "sensory overload" technique designed to frighten and disorient the person. Brown v. City of Milwaukee, #02-C-0178, 288 F. Supp. 2d 962 (E.D. Wis. 2003).

     Reasonably competent police officers could have disagreed as to whether probable cause was required to search a student suspected of drug possession when the search was conducted by school officials, so that an officer who suggested that the principal search the student in a school office was entitled to qualified immunity from the student's lawsuit claiming that he was unlawfully detained and searched. Doyle v. Rondout Valley Central School District, 770 N.Y.S.2d 480 (A.D. 3d Dept. 2004).

Sexual Assault & Harassment

EDITOR'S CASE ALERT:

     Federal appeals court reverses trial judge's grant of summary judgment to city in lawsuit brought by female motorist who claimed that police officer broke into her home and sexually assaulted her after obtaining her home address from her driver's license during traffic stop which might have been aimed solely at finding out where she lived. Court speculates that Illinois Supreme Court might find that the officer, because of his assertion of his official authority, acted within the scope of his employment, triggering a duty, on the part of the city, to indemnify the officer for any judgment against him. Doe v. City of Chicago, No. 03-2221, 2004 U.S. App. Lexis 3811 (7th Cir. 2004).

Age Discrimination - General

     Supreme Court holds that an employer may provide different benefits for retired workers, for those over age 50, and those under 50. The ADEA, which protects workers who are age 40 and older, offers no protection for younger workers against enhanced benefits for older employees, because it was enacted to protect older, not younger, workers. Gen. Dynamics Land Sys. v. Cline, No. 02-1080, 2004 U.S. Lexis 1623, 72 U.S.L.W. 4168 (2004).

     If an employee cannot show lost wages, he cannot recover any damages in an ADEA action because "the ADEA does not permit a separate recovery of compensatory damages for pain and suffering or emotional distress." Beverly v. Desmond Hotel, #02-6712, 2004 U.S. Dist. Lexis 353 (E.D. Pa. 2004).

Alcohol Abuse, Testing & Rehab

     Arbitrator sustains the termination of a city employee who refused to take drug and alcohol test, where the employee smelled of alcohol and slurred his speech. City of Hialeah and AFSCME Florida C-79, 119 LA (BNA) 210, FMCS Case #03/09144/3 (Smith, 2003).

Arbitration Procedures

     California appellate court rejects an arbitration clause in a plaintiff's employment contract because of its cost-sharing provision and it lacked mutuality and fairness. Abramson v. Juniper, #H025840, 2004 Cal. App. Lexis 151 (6th Dist. 2004).

     Appeals court holds that arbitrator could clarify a two-year-old award. Neither the Ohio three-month time limitation to modify an award nor the Ohio one-year time limitation to confirm an award applies to a request to clarify an award. The doctrine of functus officio (having fulfilled the function, the arbitrator had no further authority) does not apply where an award is susceptible to more than one interpretation. Sterling China v. Glass Workers Union, #02-3773, 2004 FED App. 0037P, 2004 U.S. App. Lexis 1556 (6th Cir. 2004).

Associating with Known Criminals

     Federal appeals court overturns an arbitration award reinstating a Border Patrol Agent who bailed out a woman, who lived at his home, on a cocaine possession charge. The fact the woman was never convicted is not determinative. James v. Dale, #03-3030, 355 F.3d 1375 (Fed. Cir. 2004).

Attorneys' Fees and Legal Defense Rights

     New York's highest court agrees with a decision not to indemnify or defend an off-duty police officer that had his neighbor arrested for zoning violations. Salino v. Cimino, #128, 1 N.Y.3d 166, 802 N.E.2d 1100 (2003).

Collective Bargaining - Duty to Bargain

     California Supreme Court stays and depublishes an appellate court decision that held that a city must bargain with the union over the adoption of a traffic stops "profiling" policy that was implemented to prevent racial profiling; the justices will hear the city's appeal. Claremont POA v. City of Claremont, #S120546, 82 P.3d 747, 8 Cal.Rptr.3d 541; prior decis. at 112 Cal.App.4th 639.

Contracts, Consultants and Outsourcing

     The Federal Office of Personnel Management has published a Rule that would allow would allow private sector information technology management to be assigned to work in a federal agency, and federal IT employees to work in the private sector. The Rule implements the E-Government Act of 2002. Operation of Information Technology Exchange Program, 69 (10) Fed. Reg. 2308, 5 CFR Part 370.

Criminal Liability

     Appeals court reverses the conviction of a U.S. Capitol Police officer who created an anthrax "joke," leaving some powdered sweetener and a note on a desk. The appellate panel found that his false statement was not made during an investigation or review as specified in 18 U.S. Code § 1001(c)(2). U.S. v. Pickett, #03-3018, 353 F.3d 62 (D.C. Cir. 2004).

Disciplinary Appeals & Challenges

     Appellate court holds that a terminated police officer had to elect whether to pursue his appeal to arbitration or the Civil Service Commission, and could not "double-barrel." Canavan v. Civil Service Cmsn., #02-P-679, 802 N.E.2d 126 (2004).

Disciplinary Discovery

     Amendments to the Fair Retail Credit Act now exclude reports sent from outside agencies that are related to "suspected" employee misconduct. H.R.2622, enacted as Public Law No. 108-159, amending Sec. 601(a)(q) of the Fair Credit Reporting Act, 15 U.S. Code 1681a(d)(2)(D).

     Appeals court upholds the decision by an arbitration panel of not to issue a subpoena for the disciplinary files of other officers who were disciplined for untruthfulness. AFSCME v. City of New Haven, #AC 23347, 2004 Conn. App. Lexis 56 (2004).

Disciplinary Interviews - Abusive or Coercive

     Arbitrator concludes that a supervisor's conduct in brusquely questioning a foreman about inmates under his control did not violate the bargaining agreement or Federal Bureau of Prisons standards of conduct. It did not rise to level of "workplace violence." Federal Correctional Institution, El Reno, Okla. and AFGE L-171, 119 LA (BNA) 129, FMCS Case No. 02/12027 (Woolf, 2003).

Disciplinary Punishment

     Arbitrator upholds the termination of a public employee who, under the influence of alcohol, left a profane voice mail message for his supervisor. His "stress defense" failed because he lacked any medical substantiation. City of Anaheim and Municip. Empl. Assn., 119 LA (BNA) 270 (Gentile, 2003).

Discovery, Publicity and Media Rights

     A federal court has held that a defendant in a civil wrongful death action could take the Fifth Amendment when the plaintiffs sought to take his deposition. Boim v. Quranic Literacy Institute, #00 C 2905, 2004 U.S. Dist. Lexis 2060 (N.D. Ill. 2004), citing Baxter v. Palmigiano, 425 U.S. 308 at 316 (1976).

     Texas Attorney General rules that a public official or public employee's journal of public events is subject to disclosure under the state's Public Information Act, even if the book was purchased with personal funds and kept at home. Texas A.G. Opin. OR2004-0327 (2004).

Domestic Partners Rights

     After the Massachusetts Supreme Court struck down a state law requiring marital couples to be of the opposite gender, a second opinion is issued. The justices make clear that the legislature must allow full same-gender marriages, and not just civil unions. However, public employers will not be permitted to offer similar benefits to the domestic partners of their employees. Opinions of the Justices to the Senate, #SJC-09163, 440 Mass. 1201, 802 N.E.2d 565 (Mass. 2004); prior opin. at Goodridge v. Dept. of Public Health, #SJC-08860, 440 Mass. 309, 798 N.E.2d 941 (Mass. 2003).

Drug Screening and Specimen Testing

EDITOR'S CASE ALERT:

     Unanimous Arizona Supreme Court strikes down random drug testing of firefighters. Petersen v. Mesa, #CV-03-0100, 83 P.3d 35 (2004).

Employee Harassment - Nonsexual

     Arbitrator sets aside the discipline of a state employee who used foul language to a coworker. Such conduct, though deplorable, did not rise to the level of harassment. N.Y. Dept. of Labor and Civil Serv. Empl. Assn., 118 LA (BNA) 1817, Case No. 03-DIS-048 (Gross, 2003).

First Amendment Related

EDITOR'S CASE ALERT:

     A divided federal appeals court panel concludes that the First Amendment protects an off-duty police officer, who sold videotapes of himself stripping out of uniform and masturbating. Roe v. City of San Diego, #02-55164, 356 F.3d 1108 (9th Cir. 2004).

Handicap Discrimination

     Appeals court declines to dismiss a suit brought by a Justice Dept. employee with depression who sought a transfer. There was no evidence that the transfer would cause an undue hardship and the employer failed to engage in an interactive process to explore whether some variant of the proposal was workable. Calero-Cerezo v. Dept. of Justice, #02-2643, 355 F.3d 6 (1st Cir. 2004).

     Massachusetts Supreme Court overturns $90,000 judgment won by a police officer who was removed from the special response team after he shot a suspect. Even if his superiors regarded him as disabled, an inability to perform a particular assignment is not a disability under federal or state discrimination laws. City of New Bedford v. Mass. Cmsn. Against Discrim., #SJC-08885, 440 Mass. 450, 799 N.E.2d 578 (2003).

Injuries to Employees

     California appellate court annuls liability for training injuries. Peace officers assume the risk of injury, under the "firemens' rule." Hamilton v. Martinelli & Assoc., #E031683, 110 Cal.App.4th 1012, 2 Cal.Rptr.3d 168 (4th App. Dist. 2003).

Occupational Safety & Disease

     States lack sovereign immunity from federal OSHA prosecutions. Conn. Dept. of Envir. Prot. v. Occ. Saf. and Health Admin., #01-6217, 356 F.3d 226 (2d Cir. 2004).

Physical Fitness & Agility Tests

     DoJ sues a Pennsylvania city over allegedly gender-biased police entry tests. Applicants had to run a 220-yard obstacle course in 90 seconds; there was a pass rate of 71% for males and 13% for females. U.S. v. City of Erie, #04-CV-4 (W.D. Pa. filed 2004).

Political Activity

     Third Circuit rejects the suit of a terminated city manager that campaigned against winning council candidates. His interest in free speech did not outweigh the government's interest in efficiency. Curinga v. City of Clairton, #03-1278, 2004 U.S. App. Lexis 1654 (3rd Cir. 2004).

Racial Harassment

     Federal appeals court concludes a jury could find that a safety director was harassed by coworkers who used the word "nigger." However, because they were not his supervisors, a summary judgment for the employer is affirmed. Hrobowski v. Worthington, #03-2167, 2004 U.S. App. Lexis 2533 (7th Cir. 2004).

Retirement Rights and Benefits

     Pension fund was not obligated to reinstate the retirement benefits of a police officer who was convicted of lying to a grand jury, and later was pardoned by President Clinton. The claimant forfeited all rights and property interest when he elected to receive a refund of his pension contributions. Yasak v. Ret. Bd. of Policemen's Benefit, #03-1733, 2004 U.S. App. Lexis 1661 (7th Cir. 2004).

Sex Discrimination

     Appeals court holds that when an insolvent private correctional services firm sells a substantial portion of its assets to another organization, the purchaser may be subject to liability for the pending Title VII claims. Brzozowski v. Corr. Physician Servs., #02-3659, 2004 U.S. App. Lexis 3240 (3d Cir. 2004).

Sexual Harassment Verdicts

     Federal jury in Chicago has awards $500,000 to a former manager in the office of the Inspector General of Cook County. Roberts v. Cook County, #01 C 9373, (N.D. Ill. 2004); prior interim ruling at 213 F. Supp.2d 882 (2002).

     EEOC suit in behalf of a woman truck driver results in a verdict for $101,400 in backpay, $290,000 in front pay, $350,000 for emotional suffering and $2.5 million in punitive damages, for a total award of $3,241,400. EEOC v. Fed Ex, #1:02-cv-1194 (M.D. Pa. verdict 2004).

Sick Leave and Abuse

     Arbitrator upholds the right of management to require a worker to provide documentation for his use of sick leave. Although the contract required documentation only for absences of more than three days, it was reasonable for management to require documentation where a pattern of absences of less than three days occurs. Penn Hills and Munic. Empl. Org., 118 LA (BNA) 1806 (Franckiewicz, 2003).

Stress Related Claims

     Postal worker who had witnessed the 1986 massacre in Edmond, Okla. was "disabled" with PTSS -- but was not a qualified individual because she was unable to work in an office. Mason v. Avaya, 2004 U.S. App. Lexis 422, 15 A.D. Cases (BNA) 153 (10th Cir. 2004).

Transfers - Disciplinary or Punitive

     Appellate court declines to overturn an arbitration finding that an involuntary transfer of an officer from the aviation unit was for disciplinary reasons and was grievable, as opposed to a nondisciplinary managerial decision. Penn. State Police v. P. S. Troopers Assn., #1815 C.D. 2003, 840 A.2d 1059 (Penn. Cmwlth 2004).

Untruthfulness

     GAO targets phony degrees held by federal workers. A Senate Committee asked the GAO to investigate the use of diploma mill degrees to obtain positions and promotions and whether those degrees were paid for with federal funds.

Whistleblower Protection

     EEOC publishes rules to implement the posting requirements of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No Fear Act), which protects whistleblowers and other victims of federal discrimination. P.L. 107-174, 116 Stat. 556, 28 U.S. Code §2301. It requires federal agencies to maintain No Fear websites in specified formats. Under the act, agency budgets are assessed any damages imposed as a result of retaliatory and other unlawful treatment of their workers. Posting Requirements in Federal Sector, 69 (16) Fed. Reg. 3483-3492.

Attorneys' Fees

     Prison visitor who sought $9 million in damages on multiple constitutional and state law claims over purported unlawful search and arrest, and excessive use of force against him by correctional officers was ultimately awarded only $2,501 in damages against one officer on a single claim of excessive use of force. Trial judge reduces requested attorneys' fee award and costs of over $140,000 to a total of $27,157.80, based on "unnecessary prolonging," by plaintiff's attorney, of the duration and cost of the case. Lynn v. State of Maryland, 295 F. Supp. 2d 594 (D. Md. 2003).

Defenses: Governmental Immunity

     State, county, and individual officials were entitled to immunity for criminal actions of one mentally ill offender in assaulting another in a conditional release program. State statute provides absolute immunity for any liability for the criminal actions committed by persons in the Forensic Conditional Release Program, including persons on parole or judicial commitment status. Cal. Penal Code Sec. 1618. Ley v. State, 8 Cal. Rptr. 3d 642 (Cal. App. 2nd Dist. 2004).

Defenses: Notice of Claim

     Prisoner's notice of his intent to file a claim against the state concerning injuries inflicted on him during his removal from his cell by correctional officers was inadequate when it failed to specify the nature of his medical negligence claim. Motion to dismiss claim upheld. Cendales v. State, 770 N.Y.S.2d 174 (A.D. Dept. 3 2003).

Defenses: Qualified Immunity

     Sheriff was entitled to qualified immunity on claims that pre-trial detainee who suffered head injuries was improperly denied medical attention. There was no showing that sheriff inadequately supervised his subordinates, and there was no claim that there were any prior incidents in which jail employees failed to give needed medical care to detainees. Layman v. Alexander, 294 F. Supp. 2d 784 (W.D.N.C. 2003).

Diet

     Serving a prisoner a sack lunch rather than a hot meal did not violate his rights when the food provided was nutritionally adequate and met his medical and religious needs. Amos v. Simmons, 82 P.3d 859 (Kan. App. 2004).

DNA Tests

     Prisoners incarcerated after their convictions for armed bank robbery had no constitutional privacy right against their correct identification, and therefore the gathering of DNA samples from them for inclusion in a federal database maintained by the FBI, pursuant to the DNA Analysis Backlog Elimination Act, 42 U.S.C. Secs. 14135-14135e, was reasonable. Groceman v. U.S. Department of Justice, No. 02-10810, 354 F.3d 411 (5th Cir. 2004).

     Georgia DNA law requiring convicted felons to provide DNA samples did not violate prisoners' rights under either the U.S. or Georgia constitutions. Any right of privacy in the identification of such felons was "substantially outweighed" by the government's interest in having a DNA database for use in solving crimes and exonerating innocent persons. Padgett v. Ferrero, 294 F. Supp. 2d 1338 (N.D. Ga. 2003).

False Imprisonment

     Federal jury awards $750,000 to man incarcerated for 15 days after misidentified as person sought in outstanding warrant. Sheriff's department argued, in defense, that there was no duty for it to have a procedure in place to investigate a detainee's claim that he was not the suspect sought in a warrant. Hernandez v. Sheahan, No. 99C-6441, U.S. District Ct., N.D. Ill, Nov. 25, 2003, reported in the Chicago Daily Law Bulletin, p. 25, February 20, 2004.

Federal Tort Claims Act

     Mother of federal prisoner shot and killed while residing in a halfway house could not pursue her claims that the Bureau of Prison violated his constitutional right to protection under the terms of the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346, 2671 et seq. The FTCA does not waive the sovereign immunity of the U.S. government for constitutional claims, but rather for negligence. Phillips v. Federal Bureau of Prisons, 271 F. Supp. 2d 97 (D.D.C. 2003).

Firearms Related

     Even if correctional officer shot and killed the wrong prisoner during violent prison yard fight between two rival gangs, his use of deadly force to break up the disturbance was reasonable and he was entitled to qualified immunity for claims brought by the prisoner's estate. Torres v. Runyon, #02-15273, 80 Fed. Appx. 594 (9th Cir. 2003).

Freedom of Information

     Employee accident reports, employee interviews, and employee training records were not exempt from disclosure under New York law to prisoner seeking information concerning an incident in which he was allegedly injured by correctional officers, so long as personal data about individual officers was excluded. Disclosure of employee staffing records, however, were exempt, as their disclosure could endanger officers' lives and safety by revealing where they were posted within the correctional facility. Beyah v. Goord, 766 N.Y.S.2d 222 (A.D. Dept. 3 2003).

Medical Care

     Correctional officers who allegedly knew that detainee was diabetic and who failed to provide him with food or insulin despite his complaints could be liable for deliberate indifference to his serious medical needs. Federal appeals court orders further proceedings on medical care issue and claim that officers used excessive force in response to prisoner's request for food or medicine. Lolli v. County of Orange, #02-56309, 351 F.3d 410 (9th Cir. 2003).

     Jail guards who referred detainee to a nurse one day after he complained about foot pain were not shown to have acted with deliberate indifference to his serious medical needs. Reynolds v. Barnes, No. 03-1108, 84 Fed. Appx. 672 (7th Cir. 2003).

     Prisoner's claim that a prison doctor prescribed a different medication for treatment of his high blood pressure than the drug he requested was insufficient to state a claim for deliberate indifference to his serious medical needs and only showed a "mere disagreement" over the best appropriate treatment. Jenkins v. Lee, No. 03-40573, 84 Fed. Appx. 469 (5th Cir. 2004).

     Female prisoner's pregnancy was a serious medical condition, and genuine issues of material fact concerning whether nurses and guards knowingly disregarded risks to her when they failed to transport her to a hospital and placed her in segregated confinement precluded summary judgment in her federal civil rights lawsuit. Doe v. Gustavus, 294 F. Supp. 2d 1003 (E.D. Wis. 2003).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner showed that he exhausted his available administrative remedies on his claim that inadequate medical care was provided for his Crohn's disease and diabetes when prison officials failed to respond to his filed grievance during the subsequent four-year time period. Woulard v. Food Service, 294 F. Supp. 2d 596 (D. Del. 2003).

     Prison officials granted summary judgment on prisoner's claim that he was beaten by correctional officers after defendants presented evidence supporting their contention that he had failed to exhaust available administrative remedies as required by 42 U.S.C. Sec. 1997e(a). Arnold v. Goetz, 245 F. Supp. 2d 527 (S.D.N.Y. 2003).

     Prisoner's claims against 26 correctional employees and officials for alleged denial of adequate medical care and unconstitutional conditions of confinement dismissed based on his failure to exhaust available administrative remedies. McCoy v. Goord, 255 F. Supp. 2d 233 (S.D.N.Y. 2003).

Prisoner Assault: By Inmates

     Correctional officers' alleged failure to remove prisoner from area where fellow inmates were attempting to gain access to him to assault him, if true, constituted deliberate indifference to his safety, so that officers were not entitled to qualified immunity. Odom v. South Carolina Dept. of Corrections, #02-7086, 349 F.3d 765 (4th Cir. 2003).

Prisoner Assault: By Officers

     Plaintiff prisoner was not entitled to an evidentiary hearing concerning claims that correctional officials stripped and beat him, when claims were properly dismissed on the basis of sovereign immunity and the statute of limitations. Cesspooch v. Federal Bureau of Prisons, No. 02-1538, 84 Fed. Appx. 30 (10th Cir. 2003).

Prisoner Discipline

EDITOR'S CASE ALERT:

     U.S. Supreme Court rules that prisoners may pursue federal civil rights lawsuits for damages over prison discipline despite the fact that the disciplinary conviction has not been set aside, so long as the lawsuit challenges only the conditions of confinement, rather than the fact or duration of the confinement. Muhammad aka Mease v. Close, # 02-9065, 124 S. Ct. 1303 (2004).

     Prisoner who pled guilty to the violations of prison rules asserted in a misbehavior report could not subsequently challenge the finding that he in fact violated those rules. Cross v. Goord, 770 N.Y.S.2d 245 (A.D. Dept. 4 2003).

     There was insufficient evidence to support a finding that a prisoner made a knowing and voluntary waiver of his right to be present at his disciplinary hearing. Court upholds ruling annulling determination finding prisoner guilty of violating prison disciplinary rules. Rush v. Goord, 770 N.Y.S.2d 191 (A.D. Dept. 3 2003).

Prisoner Injury/Death

EDITOR'S CASE ALERT:

     Prisoner stated a claim for deliberate indifference to his safety, in violation of the Eighth Amendment, by alleging that correctional officers transporting him refused to fasten his seatbelt while he was unable to do so because of shackles. Prisoner could pursue claims both for injuries in subsequent vehicle accident and for alleged inadequate medical care following accident. Brown v. Missouri Department of Corrections, #03-2193, 353 F.3d 1038 (8th Cir. 2004).

Prisoner Suicide

     Detainee's action of hanging himself to death with shoelace in his holding cell less than two hours after being placed there on DUI charges did not subject facility to liability under Pennsylvania state law for negligence. Neither "personal property" nor "real estate" exceptions to sovereign immunity under state law applied. Pennsylvania State Police v. Klimek, 839 A.2d 1173 (Pa. Cmwlth. 2003).

Prisoner Transfer

     Prisoner's alleged transfer to a higher security correctional facility based on his refusal to cooperate with a federal corruption investigation concerning prison guards did not violate his Fifth Amendment right against self-incrimination or any other constitutional right. The prisoner did not invoke his Fifth Amendment rights when he was initially was questioned, and, since the prisoner asserted that he was not involved in the offenses being investigated, the statements sought from him would not have been incriminating. McBayne v. Pugh, No. 03-1228, 85 Fed. Appx. 109 (10th Cir. 2003).

Privacy

     Even if three female inmates in a nearby cell could have viewed a male prisoner on the toilet at times, he had no valid claim for violation of his right to privacy when this was unknown to jail officials and he did not complain to shift supervisors during fifty-one opportunities to do so, prior to filing a formal grievance. Jail officials, upon notification of the issue, promptly furnished a solution. Simpson v. Penobscot County Sheriff's Department, 285 F. Supp. 2d 75 (D. Me. 2003).

Procedural: Discovery

     Prisoner accused of heroin possession did not show good cause to obtain personnel files of correctional officers who obtained information which tipped them off that he might be selling drugs when there was no factual basis for his claim that they engaged in misconduct which led to the discovery of the drugs. Officers were not personally involved in the search that led to the discovery of the heroin. People v. Collins, 8 Cal. Rptr. 3d 731 (Cal. App. 2d Dist. 2004).

Racial Discrimination

EDITOR'S CASE ALERT:

     U.S. Supreme Court to review issue of whether California prison practice of routinely segregating prisoners by race during initial period of incarceration is permissible for purposes of preventing racial violence, as federal appeals court ruled, or unconstitutional discrimination in violation of the right to equal protection. Johnson v. California, #03-636, 72 U.S. Law Week 3551 (March 1, 2004).

Religion

     Punishment of Muslim prisoner for failing to respond to officer's order until he completed his prayers might violate his rights if, as he claimed, the officer intentionally gave the order then in order to interfere with his exercise of his religion. Prisoner was subsequently fed food "loaf" rather than "properly blessed" (Halal) food for a week, allegedly interfering with his celebration of the Muslim holy month of Ramadan. McEachin v. McGuinnis, No. 02-0117, 357 F.3d 197 (2nd Cir. 2004).

Sexual Offender Programs and Notification

EDITOR'S CASE ALERT:

     Prisoner classified as a sexual offender in prison, and compelled to participate in a treatment program in order to earn good time credits, despite not having been convicted of a sexual offense, was entitled to procedural due process before classification, but hearing held was adequate when determination was made because of a detailed account of the sexual assault based on statements from the victim. Gwinn v. Awmiller, #00-1485, 354 F.3d 1211 (10th Cir. 2004).

     State trooper who provided community notification of the presence of out-of-state sexual offender who transferred his parole to Pennsylvania was entitled to qualified immunity, as a reasonable officer could have believed that such notification did not violate the offender's constitutional rights. Lines v. Wargo, 271 F. Supp. 2d 649 (W.D. Pa. 2003).

Smoking

     Prison officials who supervised residential unit were entitled to qualified immunity from liability on prisoner's claim that they improperly exposed him to second-hand tobacco smoke when smoking was prohibited but non-smoking policy was "imperfectly" enforced. Moorer v. Price, No. 03-1429, 83 Fed. Appx. 770 (6th Cir. 2003).

     "Vague and speculative" assertions that permitting other prisoners to smoke exposed the plaintiff inmate to an unhealthy environment were not sufficient to state a claim for violation of his constitutional rights. Harrison v. Smith, No. 03-40924, 83 Fed. Appx. 630 (5th Cir. 2003).

     Pre-trial detainee failed to show that prosecutor was individually involved in his confinement in a facility permitting tobacco smoking which allegedly aggravated a pre-existing medical condition. Prosecutor was entitled to absolute immunity in both her official and individual capacity, as the prisoner's detention was part of the initiation and presentation of criminal charges against him. Reid v. Schuman, No. 03-0031, 83 Fed. Appx. 376 (2nd Cir. 2003).

Strip Search: Prisoners

     Male prisoner's strip search in the presence of a female sergeant was not a violation of his Eighth Amendment or privacy rights, even assuming that the sergeant laughed at his nakedness. The search, conducted in response to allegations of smoking marijuana, was reasonably related to legitimate security concerns, and verbal insults of an inmate were not violations of his constitutional rights. Roden v. Sowders, No. 02-6427, 84 Fed. Appx. 611 (6th Cir. 2003).

     Prisoner's claim that correctional officers grabbed his genitals during pat down searches and then subjected him to "slow, exaggerated and humiliating" strip searches were sufficient to state a claim for assault under New Hampshire state law. Silva v. Warden, No. 2003-196, 839 A.2d 4 (N.H. 2003).