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

Administrative Liability: Training

     Genuine factual issues as to whether mayor and police commissioner adopted proper regulations regarding the use of firearms and whether officers were properly trained on those regulations barred summary judgment on lawsuit against them by arrestee who was shot twice while running away from parking ramp while allegedly unarmed. Whitfield v. Municipality of Fajardo, 279 F. Supp. 2d 115 (D. Puerto Rico 2003).

     The manner in which a city trained its police officers did not show deliberate indifference which could support a municipal liability claim by a woman arrested for public intoxication who claimed that officers were not adequately trained to tell the difference between intoxication and panic disorders or certain physical infirmities. There was no showing that the plaintiff's arrest was the result of the city's alleged policies or inadequate police training. Newell v. City of Salina, 276 F. Supp. 2d 1148 (D. Kan. 2003).

Assault and Battery: Physical

     Officers alleged continued use of physical force after a man was subdued and restrained violated clearly established law and, if as plaintiff described, was excessive as used against a man who had committed no crime. Officers also lacked probable cause to restrain him for an involuntary mental evaluation solely on the basis of a neighbor's 911 call reporting that he was suicidal. Bailey v. Kennedy, No. 02-1761, 349 F.3d 731 (4th Cir. 2003).

     Videotaped footage of incident was sufficient to confirm police officers' testimony and contradict enough of the testimony of the plaintiff's witnesses to entitle defendant police officers to summary judgment on lawsuit claiming that they improperly used excessive force which resulted in store patron's injuries and death. Videotape which showed other store patrons walking calmly by at the time plaintiff's witnesses claimed officers were beating decedent in store aisle indicated that there was not actually an altercation going on when and where the plaintiff's witnesses testified. Stewart v. Prince George's County, Maryland, #02-2071, 75 Fed. Appx. 198 (4th Cir. 2003).

Bankruptcy: Defense and Procedural Issues

     A plaintiff acting as her own attorney claimed that police officers had improperly beaten her without justification, but a bankruptcy trustee was substituted for her as the real party in interest after she filed bankruptcy. She subsequently failed to file answers to requests for admissions in the case, because she believed that the trustee had submitted the requested information, but the trustee had not. Summary judgment was later granted because the unanswered requests were deemed admissions. The Supreme Court of Alaska held that the plaintiff, now substituted back in following the withdrawal of the trustee, should be allowed to withdraw the admissions, reinstating the case. Genaro v. Municipality of Anchorage, No. S-10681, 76 P.3d 844 (Alaska 2003).

Defenses: Absolute Immunity

     Prosecutors who advised a deputy sheriff that he could make an arrest for "attempted solicitation of murder," despite the fact that no such crime existed under Washington state law, were not entitled to absolute immunity from liability, since prosecutorial immunity does not apply to the function of providing legal advice to the police, but individual defendants were entitled to qualified immunity. The arrest ultimately violated no constitutional rights because the same conduct supplied probable cause to arrest the plaintiff on a charge of felony harassment. Dillberg v. County of Kitsap, No. 02-35565, 76 Fed. Appx. 792 (9th Cir. 2003).

Defenses: Governmental Immunity

     County could not be held liable under Tennessee state law for a deputy's alleged use of excessive force in carrying out an arrest. The plaintiff's "negligence" claims were actually claims for intentional wrongful conduct for which a county has governmental immunity under the state's Governmental Tort Liability Act, T.C.A. Sec. 29-20-205(2). Brooks v. Sevier County, 279 F. Supp. 2d 954 (E.D. Tenn. 2003).

Defenses: Issue Preclusion

     An arrestee was precluded from pursuing a state court lawsuit against a city and its police officers claiming harassment and excessive use of force where he had previously filed a federal lawsuit against the city raising the same claims based on the same facts and circumstances, which the federal court found to be frivolous. Black v. City of Tupelo, No. 2002-CA-01919-SCT, 853 So. 2d 1221 (Miss. 2003).

Defenses: Official Immunity

     Police officer was acting in good faith in performing normal law enforcement duties in ticketing motorist in no-parking zone and in accompanying "belligerent" motorist to his home to retrieve his license, entitling him to official immunity from liability for alleged negligently caused injury to motorist's wrist. Motorist fell when officer pushed house door when motorist attempted to close it with officer in the way. Cherqui v. Westheimer Street Festival Corp., No. 14-02-00731-CV, 116 S.W.3d 337 (Tex. App. 2003).

     Negligence claim against deputy sheriff arising out of motor vehicle accident could not be dismissed on the basis of official immunity when there was evidence from which the plaintiff motorist could possibly show that at the time of the incident the deputy was engaged in a personal errand or otherwise had departed from the scope of his official duty. Ex parte Haralson, No. 1012071, 853 So. 2d 928 (Ala. 2003).

False Arrest/Imprisonment: No Warrant

     Police officer was not shown to have used investigative techniques in child abuse investigation that were "so coercive and abusive" that he knew or should have known that they would yield false information. Officer had probable cause for arrest of suspect even if portions of his affidavit supporting the arrest were inaccurate as to the number of child victims who had told the officer the arrestee had sexually abused them. Gausvik v. Perez, No. 02-35902, 345 F.3d 813 (9th Cir. 2003).

     Officers acted unlawfully in seizing a man at a gas station when they were on the way to executing a search warrant at his residence and transporting him to the site of the search, without probable cause to arrest him. Arrestee awarded $4,000 in actual damages and punitive damages of $20,000 by jury. Pappas v. New Haven Police Department, 278 F. Supp. 2d 296 (D. Conn. 2003).

     Probable cause existed to arrest store customer for disorderly conduct when he repeatedly attempted to devise a way to "thwart" store's policy granting only store credit for returned merchandise and refused store manager's request to leave the property and police officers' orders to move away. Epstein v. Toys-R-Us Delaware, Inc., 277 F. Supp. 2d 1266 (S.D. Fla. 2003).

     Report prepared by employer's loss prevention executive, detailing his lengthy investigation into suspected employee theft provided police detective with enough information to establish probable cause to arrest employee. Means v. City of Atlanta Police Department, No. A03A1384, 586 S.E.2d 373 (Ga. App. 2003).

Family Relationships

EDITOR'S CASE ALERT:

     Deputy sheriff's action of removing man's 12-year-old daughter from his custody during court ordered visitation was not reasonable, when based on deputy's knowledge of pending charges against father for allegedly sexually abusing a fourteen-year-old female. Deputy was not entitled to qualified immunity in father's civil rights lawsuit, as his action was not justified as an emergency removal based on reasonable suspicion of child abuse. Swipies v. Kofka, No. 03-1274, 348 F.3d 701 (8th Cir. 2003).

Federal Tort Claims Act

     Police officer's failure to exhaust available administrative remedies barred his bringing a lawsuit under the Federal Tort Claims Act, 28 U.S.C. Sec. 2675(a) against federal officers seeking emotional distress damages for their alleged failure to protect him from reprisals by targets of an investigation of police corruption. Russo v. Glasser, 279 F. Supp. 2d 126 (D. Conn. 2003).

First Amendment

     Denial of Ku Klux Klan's application to join state highway commission's "adopt-a-highway" was improper whether justified on the basis that the Klan discriminates on the basis of race or on the basis of "judicial notice" that the organization has a history of violence. Denial overturned by federal court on First Amendment grounds. Robb v. Hungerbeeler, 281 F. Supp. 2d 989 (E.D. Mo. 2003).

     Public library's eviction of patron for refusal to wear shoes did not violate his First Amendment rights. Requirement to wear shoes was rationally related to legitimate government interests in protecting public health and safety and protecting public funds against personal injury claims of barefoot patrons. Neinast v. Board of Trustees of Columbus Metropolitan Library, #02-3482, 346 F.3d 585 (6th Cir. 2003).

Freedom of Information

     Television station was entitled to disclosure of audiotape of minor's 911 call under a Michigan state freedom of information statute, and was a prevailing party entitled to an award of costs, attorneys' fees, and punitive damages for city's refusal to disclose the audiotape. City's actions, based on the belief that the release would interfere with the minor's right to a fair trial in a pending family division court case charging the minor with voluntary manslaughter for shooting his uncle was arbitrary and capricious. Meredith Corp. v. City of Flint, 671 N.W.2d 101 (Mich. App. 2003).

Governmental Liability: Policy/Custom

     African-American hospital patient's alleged unlawful detention by deputy sheriffs for psychiatric evaluation after she purportedly became "unruly" in hospital emergency room while awaiting treatment was not caused by any county policy of inadequate training on "diversity" or "communication skills, barring claims for governmental liability. Harvey v. Alameda County Medical Center, 280 F. Supp. 2d 960 (N.D. Cal. 2003).

Insurance

     Insurer of parked police cruiser assisting motorist with stalled motor vehicle was liable for the payment of no-fault benefits to surviving spouse of motorcyclist and motorcyclist's passenger, after motorcyclist's collision with police car. Police cruiser's status as an emergency vehicle did not bar insurer's liability under Michigan law, and police cruiser was "involved in the accident" as defined in the no-fault statute. Amy v. MIC General Insurance Corp., No. 237055, 670 N.W.2d 228 (Mich. App. 2003).

Interrogation

     Arrestee could not successfully seek damages based merely on a custodial interrogation without Mirada warnings when none of her elicited statements were ever used against her at trial. Federal appeals court also overturns $80,000 malicious prosecution award to arrestee, who claimed that officers filed false charges against her and maliciously pursued them in order to assist her officer boyfriend, who she accused of domestic abuse. Plaintiff's opening statement at trial put the question of the defendant officer's truthful character into issue, so it was prejudicial error to exclude evidence of that character. Renda v. King, #01-2421, 347 F.3d 550 (3rd Cir. 2003).

Juvenile Arrestees

     Arrest of a 12-year-old girl for eating a french fry in a D.C. rail transit station in violation of a rule prohibiting eating and drinking there did not violate her rights. Federal trial court rejects "equal protection" attack on alleged policy of mandatory arrest for juveniles violating the rule in lieu of issuing citations that might have been issued to an adult violating the rule. "Zero tolerance" rule towards juvenile violators of the rule was rationally related to rehabilitating delinquent juveniles and notifying and involving their parents in the process. Hedgepeth v. Washington Metropolitan Area Transit, 284 F. Supp. 2d 145 (D.D.C. 2003).

Negligence: Vehicle Related

     Officers who followed stolen vehicle, but were not engaged in pursuit of it, were not liable for injuries to a motorist whose vehicle was struck by the stolen car. Officers' purpose was to provide other officers with information as to the location of the stolen car, and not to actively attempt to apprehend his vehicle, since their unmarked car was not equipped with lights and sirens required to engage in active pursuit. Lalley v. City of Omaha, No. S-02-966, 670 N.W.2d 327 (Neb. 2003).

     Police officer did not act recklessly in striking a motorist's vehicle from behind at a traffic light, even though he was reading a warrant while stopped at the light and was not paying attention to traffic in his lane. The officer acted in reflex in moving his car forward when he saw traffic in the adjacent lane starting to move forward, and he did apply his brake when he looked up and saw the vehicle in front of him was still stationary. Officer and city were therefore immune from liability for the motorist's injuries under Mississippi state law. Joseph v. City of Moss Point, No. 2002-CA-00872-COA, 856 So. 2d 548 (Miss. App. 2003).

Parking Tickets & Traffic Offenses

     City's action in imposing late fees for those who do not timely pay parking tickets, even if unauthorized by any municipal ordinance, was not a violation of federally protected civil rights, such as due process. Tickets did provide recipients of the time within which to pay and the amount of the late fee, and the city's action did not involve any fundamental rights or constitute conduct shocking to the court's conscience. Rector v. City and County of Denver, #02-1434, 348 F.3d 935 (10th Cir. 2003).

Police Plaintiff: Vehicle Related

     City was not liable to family of police officer who died from injuries when hit by auto on an open highway. Plaintiff's claim that had the officer had cones and flares in his patrol car, he would have followed proper police procedure and placed his vehicle at a different location, avoiding the injuries, "was speculative." Plaintiff could not use an alleged violation of the department's Patrol Guide as the basis to establish a violation of state labor law for purposes of imposing liability. Forster v. City of New York, 765 N.Y. Supp. 2d 598 (A.D. 1st Dept. 2003).

Public Protection: Crime Victims

     Police officers who failed to arrest a sex offender after he came to a police station to surrender on a bench warrant for parole violation for failing to attend a mandated sex offender treatment class could not be held liable for his subsequent actions of murdering his landlady and raping her thirteen-year-old daughter. While police inaction may have constituted "conscience shocking deliberate indifference," the police did not create or increase the danger posed by the parolee, and his particular victims were not more foreseeable victims than the female public at large. Leidy v. Borough of Glenolden, 277 F. Supp. 2d 547 (E.D. Pa. 2003).

Pursuits: Law Enforcement

EDITOR'S CASE ALERT:

     Whether or not police officers initially decided to stop a motorist on the basis of impermissible "racial profiling," once he refused to stop, they had probable cause to seek to stop him and arrest him for the crime of fleeing, and they were therefore entitled to qualified immunity from liability for the death of a vehicle occupant caused by a collision with the pursued car and injuries to another occupant of that vehicle. Slusarchuk v. Hoff, No. 02-3601, 346 F.3d 1178 (8th Cir. 2003).

     Jury awards $2 million to family of woman killed in collision with vehicle being pursued by police officers. The lawsuit claimed that police policy required that the pursuit stop after the pursued vehicle struck a truck, but there was evidence that the pursuit continued until the subsequent collision occurred when the pursued vehicle crossed the center line in the road, killing the plaintiff's decedent. Santillana v. City of Chicago, No. 00L8327, Circuit Court of Cook County, Illinois, reported in Chicago Daily Law Bulletin, pg. 3 (December 15, 2003).

Racial Discrimination

EDITOR'S CASE ALERT:

     Differences in officer's version of incident in charges filed after arrest and in affidavit filed in civil rights lawsuit, along with other circumstances, such as his unexplained accusation that arrestee was "on crack," provided an adequate basis for motorist to proceed with his claim that he was targeted for a traffic stop and arrest on the basis of his African-American race. Marshall v. Columbia Lea Regional Hospital, #02-2184, 345 F.3d 1157 (10th Cir. 2003).

     Several African-American women subjected to pat-down and strip searches by airport security officers satisfied the requirements for showing discriminatory purpose and effect by presenting evidence of officers' false statements in their incident logs (such as falsely stating that a canine had alerted to the presence of drugs) and that the searching officers conducted intrusive searches on more than twice (and as high as three times) as many African-American women as white women. Anderson v. Cornejo, 284 F. Supp. 2d 1008 (N.D. Ill. 2003).

Search and Seizure: Home/Business

     Even if officers did forcibly enter a home without a warrant, this was not a Fourth Amendment violation when the entry was explicitly authorized by the conservator of the homeowner's estate after the homeowner was found incompetent and removed by a state agency. Officers, in entering and responding to resident daughter's objection to the removal of her father's property and documents, also did not act in a manner justifying an award of damages for emotional distress under Connecticut state law. Ehrlich v. Town of Glastonbury, No. 02-7839, 348 F.3d 48 (2nd Cir. 2003).

     Municipal building inspector was not entitled to qualified immunity in lawsuit objecting to his numerous warrantless entries in lessees' offices when there was evidence that his actions were motivated by an intent to harass or unfairly target them because of their political association with the mayor. Mimics, Inc. v. The Village of Angel Fire, 277 F. Supp. 2d 1131 (D.N.M. 2003).

     Police officers were entitled to summary judgment on unlawful search claims when they entered an apartment while executing a valid search warrant. Confidential informant's error in mistakenly identifying plaintiff's apartment number rather than the correct apartment number next door did not alter the result. Hellmann v. Gugliotti, 279 F. Supp. 2d 150 (D. Conn. 2003).

Search and Seizure: Vehicle

     Officers had probable caused to arrest the driver for obstruction of traffic and search the vehicle when he was found "asleep" at the wheel of his car in the street at an intersection during rush hour. There was no violation in arresting him for both obstruction of traffic and possession of a controlled substance even if they didn't know what the powdery substance found in the vehicle was. Ochana v. Flores, #02-2227, 347 F.3d 266 (7th Cir. 2003).

Sexual Assault

     County and sheriff were not liable, under either Ohio state law or federal civil rights law, for a deputy's sexual advances made towards a minor girl while off duty, even though he was in uniform and using a county-owned van to transport his daughter and her friends home from a movie. Deputy acted outside of the scope of his employment and did not act "under color" of law. Ramey v. Mudd, No. 02CA14, 798 N.E.2d 57 (Ohio App. 2003).

Background Investigations

     Appeals court rejects a defamation claim by a worker who was fired after a background investigation revealed possible criminal conduct. The signed release barred any lawsuit, even if the firm that oversaw the investigation did not have a state license to conduct investigations. McCleskey v. Vericon Resources, 2003 Ga. App. Lexis 1376 (2003).

Civil Service

     New legislation allows the Defense Department to create its own personnel system for 750,000 civilian employees. Management will have more flexibility in hiring, firing, and promoting employees. H.R.1588, National Defense Authorization Act, 5 U.S. Code §9901-9904 (2003).

Collective Bargaining - Duty to Bargain

     The FLRA annuls management's attempt to abolish 4-10 shifts for INS agents without bargaining. Dept. of Justice, INS and AFGE L-505, 59 FLRA No. 56 (FLRA 2003).

Criminal Liability

     Sixth Circuit upholds a federal criminal indictment that a local fire chief violated the federal arson statute when he allegedly set fire to the firehouse. A town firehouse, containing equipment manufactured outside the state, affected interstate commerce. U.S. v. Laton, #02-5185, 2003 U.S. App. Lexis 24770 (6th Cir. 2003).

Death Benefits

     Missouri appellate court holds that the family of an off-duty police officer, who was killed while working secondary employment as a security guard, could collect workers comp. benefits from the police dept. Because of the dual employment, the family could choose which employer would be liable. Leach v. Kansas City Bd. of Police Cmsnrs., 118 S.W.3d 646 (2003).

Disciplinary Interviews - Subject Matter

EDITOR'S CASE ALERT:

     NLRB holds that an employer improperly questioned an employee about distributing fliers on coworker desks after-hours, protesting the layoff of some employees, and then unlawfully fired her for lying about her activities. Because the subject matter of the disciplinary interview was improper (concerted labor activities) the employer could not terminate her for untruthfulness. U.S.A.A. and Williams, 340 NLRB No. 90 (NLRB 2003).

Disciplinary Interviews - Untruthfulness

     Although termination might not be appropriate for making a false insurance claim 14 years earlier, an arbitrator upholds the dismissal because the officer lied during the I-A investigation and continued to mislead his superiors up until his time of termination. Kitsap County and Kitsap Co. Deputy Sheriff's Guild , 118 LA (BNA) 1173, AAA Case #75-L-390-00240-02 (Gaba, 2003).

Disciplinary Procedures - Delays & Time Limits

     City ordered to reinstate a municipal police officer that was convicted of abusing a citizen. The fact that management deferred to a parallel criminal by the state police did not excuse providing the officer with the complaints and other documents within the time periods required under the bargaining agreement. City of Ansonia and Stanley, Case #2003-A-0141 (Conn. Bd. Arb. 2003).

Disciplinary Searches

EDITOR'S CASE ALERT:

     Whether the use of "administrative search warrants" to conduct locker searches is lawful is a question for an arbitrator under the bargaining agreement, and not the courts, when the issue is raised by a union and not by an officer who claims that his rights were violated. Mich. St. Police Troopers Assn. v. Mich. Dept. of State Police, 2003 Mich. App. Lexis 2827 (2003).

Domestic Partner Rights

     Citing the U.S. Supreme Court's sodomy decision in Lawrence v. Texas, 123 S.Ct. 2472 (2003), Massachusetts has joined Vermont and Ontario in declaring laws that limit marriage to opposite gender couples is unconstitutional. Goodridge v. Dept. Public Health, 798 N.E.2d 941 (Mass. 2003).

Employee Harassment - Nonsexual

     Third Circuit affirms a jury award of $1.2 million to an ex-lieutenant for retaliation and due process violations, after complaining of sexual orientation harassment. Bianchi v. City of Philadelphia, 2003 U.S. App. Lexis 22726 (3d Cir. unpub. 2003).

FLSA - Executive Exemptions

     First Circuit holds that police sergeants are exempt from FLSA overtime requirements. O'Brien v. Town of Agawam, #03-1685, 350 F.3d 279 (1st Cir. 2003).

First Amendment Related

     Federal appeals court rejects a retaliation lawsuit filed by a state police captain who claims he was denied a promotion and given an unwanted assignment because he broke the chain of command by bypassing his major, and informing a lieutenant-colonel that the FBI was investigating a trooper for bribery. The captain had no reason to believe his superiors were involved in the scheme, and there was no justification for circumventing a regulation that required all members to inform their immediate supervisor of any knowledge of misconduct by a department member. Ober v. Evanko, 2003 U.S. App. Lexis 23040 (3rd Cir. 2003).

Handicap Discrimination

     Upholding a termination for intoxicated driving, the Eighth Circuit holds that a no substance abuse last-chance agreement does not violate the ADA. Longen v. Waterous Co., 347 F.3d 685 (8th Cir. 2003).

Injuries to Employees

     Ninth Circuit refuses to give qualified immunity to Oakland police officers that mistakenly killed an off-duty officer. Whether the shooting was reasonable "depends on disputed issues" and is "best resolved by a jury." Wilkins v. City of Oakland, 2003 U.S. App. Lexis 23661 (9th Cir. 2003 ).

     In a study of 1,050 Baltimore City Police officers, 78% reported they had been physically assaulted by suspects or civilians, 77% had foot problems, 58% reported headaches, 55% complained of a needlestick injury, 47% reported nausea, 36% reported chest pains, 35% reported chronic back pain, 26% reported shooting someone, 20% reported migraines, 16% reported chronic insomnia and 9% had been assaulted by a coworker. "Work Related Injuries and Psychosomatic Problems Amongst Police Officers," a report at the 2003 National Occupational Injury Research Symposium by Columbia Univ. Sch. of Public Health.

Past Practices Clauses

     A city's practice of temporarily rescheduling firefighters' work shifts -- known as arrowing -- was not a binding past practice, despite the union's failure to file a grievance for over 20 years. Assn. of Cleveland Fire Fighters L-93 v. City of Cleveland, 2003 Ohio 4278, 793 N.E.2d 484 (2003).

Personnel Manuals

     Sixth Circuit reverses an $80,000 award to a county worker that was fired for monitoring his supervisor's e-mail. He was not a civil service employee, and the fact that the county's personnel policies listed various offenses and procedures did not create a legally-enforceable expectation of continued employment. A personnel manual is binding on workers, even if it is in electronic format. Mannix v. Monroe County, 348 F.3d 52 (6th Cir. 2003).

Psychological Exams

EDITOR'S CASE ALERT:

     Federal jury awards $325,000 to a county employee ordered to undergo a Fitness for Duty Exam. Jackson v. Lake County, #01-CV-6528, verdict rptd. at 41 (2037) G.E.R.R. (BNA) 1219 (N.D. Ill. 2003).

Psychological Counseling

     A treating psychiatrist or psychologist who releases a patient simply because he has no insurance, when the patient has been involuntarily committed under state law as a danger to himself and others, may be liable to the patient and any person that patient injures. Immunities for treating psychiatrists are not applicable. Bragg v. Valdez, 111 Cal.App.4th 421, 2003 Cal. App. Lexis 1264 (2d Dist. 2003).

Race Discrimination - In General

     Federal employees who are victims of race discrimination may not sue under section 504 of the Rehabilitation Act. Taylor v. Small, 2003 U.S. App. Lexis 24948 (D.C. Cir. 2003).

     Minorities who challenged the 1998 Chicago Police sergeant promotional process, which included an assessment of leadership, mentoring, decisionmaking and interpersonal traits failed to demonstrate the existence of an equally valid, less discriminatory employment practice. The City was entitled to a summary judgment. Allen v. City of Chicago, 2003 U.S. App. Lexis 24677 (7th Cir. 2003).

Race: Affirmative Action & Quotas

     Upholding modest affirmative plan for promotion to police sergeant, the Seventh Circuit holds that "a visible presence of minorities in supervisory positions is critical to effective policing in a racially diverse city like Chicago because supervisors "set the tone for the department." Petit v. City of Chicago, 2003 U.S. App. Lexis 25221 (7th Cir. 2003).

Sex Discrimination - Equal Pay & Opportunity Claims

     California state lab pays $18 million to settle a gender-bias pay and promotions lawsuit; lab agrees to change the controversial "Relative Value Ranking" worker rating system. Singleton and Jennings v. Reg. of Univ. of Cal.; settlement rptd. at 41 (2036) G.E.R.R. (BNA) 1191.

Sexual Harassment - Same Gender

     Federal appeals court rejects a male-on-male claim; although the supervisor engaged in unwanted sexually offensive conduct, there was no evidence he was a homosexual or that he wanted to have sex with the plaintiff. McCown v. St. John's Health System, 349 F.3d 540 (8th Cir. 2003).

Sexual Harassment - Retaliation

     A former New York City Corrections officer was engaged in "protected activity" when he defended himself against charges of sexual harassment. The Second Circuit reinstates his claim that he was denied a promotion because of his actions. Deravin v. Kerik, 335 F.3d 195 (2d Cir. 2003).

Sexual Harassment Verdicts & Indemnity

     Federal appeals court finds that a judgment for sexual harassment is not dischargeable in federal bankruptcy proceedings. Jones v. Svreck, 2003 Bankr. Lexis 1302 (1st Cir. Bank. 2003).

Suspensions and Administrative Leave

     A part-time police officer, who worked full time for another police dept. that had filed charges against him for misconduct, was not suspended, demoted, constructively discharged, or otherwise deprived of his property interest in his part-time employment when the police chief removed him from the duty list and subsequently declined to issue him new credentials, based on the charges that later led to his termination from his full time position. Dixon v. New Richmond, 334 F.3d 691 (7th Cir. 2003).

Taxation

     National Guard and reserve members now may take an above-the-line deduction for overnight travel expenses, provided the destination is at least more than 100 miles from their primary residence. Military Family Tax Relief Act of 2003, Pub. Law No. 108-121.

Uniforms, Clothing and Equipment

     Connecticut rules that management can unilaterally adopt a rule against police officers using personal cellphones while on duty. Town of Wallingford and AFSCME- L-1570, Case #MPP-21,187, Decision #3902 (Conn. Bd. Lab. Rel. 2003).

     FLRA upholds a Bureau of Prisons management decision of not paying a uniform allowance to non-uniformed personnel that are temporarily assigned to correctional officer posts, because they wear civilian clothing when so assigned. AFGE L-33 and DoJ Fed. Bur. of Prisons, #0-AR-3686, 2003 FLRA Lexis 174, 59 FLRA No. 54 (2003).

Whistleblower Protection

     A new whistleblower law in Illinois, which applies only to the private sector, prohibits retaliation against employees for making disclosures to governmental or law enforcement agencies, or retaliation for refusing to participate in an activity that would result in a violation of a state or federal law, rule or regulation. Violation of the law is a Class A misdemeanor and the employee may sue for reinstatement, back pay, litigation costs and attorney fees. An "employee" can be full or part-time, and even a paid consultant of the entity that retaliates. Illinois Public Act  093-0579.

Workers' Compensation - Claim Validity

     A flight attendant scheduled to work on United Airlines flight 93 that was hijacked on Sep. 11, 2001 is ineligible for workers comp. benefits. Her post-traumatic stress disorder was not triggered while at work. "If we were to accept petitioner's argument, off-duty police officers, firefighters, and others whose jobs are inherently risky could seek compensation benefits when a fellow employee was injured or killed while taking the employee's place ...[and] ... no authority exists to support that position." Stroka v. United Airlines, #A-4274-01, 835 A.2d 1247 (N.J. App. Div. 2003).

Access to Courts/Legal Info

     Prisoner could not assert a claim for denial of access to the courts based on refusal to allow him to visit the law library, in the absence of a showing of actual injury in a pending case. He could still pursue, however, his claim that he was denied access to legal materials in retaliation for filing grievances, since he had alleged a "chronology of events from which retaliation may plausibly be inferred." Westbrook v. Treon, #03-10004, 78 Fed. Appx. 970 (5th Cir. 2003).

Disability Discrimination: Prisoners

     Refusal to allow a wheelchair bound prisoner to present live witness testimony from inmates during a disciplinary hearing violated his due process rights. Prisoner had a protected liberty interest based on combination of his physical disability and his confinement for two months in administrative segregation in a housing unit which was not designed to accommodate disabled prisoners, and where he was denied access to his wheelchair. Serrano v. Frances, No. 01-57036, 345 F.3d 1071 (9th Cir. 2003).

DNA Tests

     Federal appeals court panel finds that federal statute requiring the forced extraction of DNA samples from parolees, in the absence of individualized suspicion of another crime, violated the Fourth Amendment and did not fit within a "special needs" exception. Full appeals court grants a rehearing en banc. U.S. v. Kincade, #02-50380, 2003 U.S. App. Lexis 20123, 345 F.3d 1095 (9th Cir. 2003), rehearing en banc granted, 2004 U.S. App. Lexis 89 (9th Cir. 2004).

     Court rejects Pennsylvania prisoner's challenge to a change in his custody level and visitation status imposed as a penalty for his refusal to provide a DNA sample. State DNA statute, 42 Pa. C.S. Sec. 4701-4741, was constitutional and prisoner was not entitled to an injunction against prison officials obtaining a DNA sample from him by force or by using other methods to persuade him to submit a DNA sample. Singleton V. Lavan, 834 A.2d 672 (Pa. Cmwlth 2003).

     Federal DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. Sec. 14135(a)-14135(e), did not violate federal prisoner's Fifth Amendment right against self-incrimination or the prohibition against "ex post facto" crimes (retroactive punishment for conduct not previously criminal) even though it was not enacted until after the plaintiff prisoner's conviction and criminalized the refusal to provide a DNA sample. Vore v. U.S. Dept. of Justice, 281 F. Supp. 2d 1129 (D. Ariz. 2003).

Drugs and Drug Screening

     State statute criminalizing the use of marijuana in a detention facility was reasonably related to legitimate governmental purposes, and provision excluding defendants charged with this offense from eligibility from being ordered into treatment programs available for those charged with use of other drugs did not violate defendants' equal protection rights. Legislature could rationally conclude that such treatment options should be made available to those charged with possession of controlled substances who suffered from addiction, but not available to those charged with marijuana use in detention facilities. People v. Goodale, No. 02SA345, 78 P.3d 1103 (Colo. 2003).

Filing Fees

     Prisoner's application to proceed in his lawsuit against prison officials as a pauper without the payment of filing fees was properly denied when the record failed to support his application, but under Nebraska state law, the trial court acted improperly in then dismissing the lawsuit, since the prisoner was entitled to a 30 day period within which he could decide to proceed with the lawsuit and pay the filing fee and costs. Martin v. McGinn, 657 N.W.2d 217 (Neb. 2003).

Freedom of Information

     Federal Bureau of Prisons properly showed justification for the withholding from disclosure under a freedom of information request of its internal personnel rules and practices, but not for withholding staff manuals, and also failed to show that it had conducted an adequate search for the records which the plaintiff had requested. Maydak v. U.S. Department of Justice, 254 F. Supp. 2d 23 (D.D.C. 2003).

Inmate Funds

     Prison officials violated prisoners' rights by requiring them, as a condition of prison employment, to waive any property rights to accrued interest on their inmate trust accounts, and violated prisoners' due process rights by confiscating this interest despite a state statute entitling them to the interest, when no procedure was provided to contest the loss. Officials had qualified immunity from liability for the seizure of interest, however, as prisoners' rights were not clearly established, but not for retaliating against prisoners for refusal to waive the interest. Vance v. Barrett, No. 01-15819, 345 F.3d 1083 (9th Cir. 2003).

     Trial court did not exceed its discretion in dismissing a prisoner's claim against prison officials for a refund of $13.05 for "picture tickets" he purchased which he was unable to use after his transfer to a new prison. Basis of dismissal was prisoner's failure to appear in court, and there was no showing that the plaintiff prisoner took any steps to achieve his attendance at the hearing. Under state law rules for small claims, however, the dismissal should have been "without prejudice" to his possibly refiling the claim in the future. Brown v. State of Indiana, No. 62A04-0204-CV-134, 781 N.E.2d 773 (Ind. App. 2003).

     Prisoner was not entitled to an order that the state Department of Corrections stop deducting funds from his inmate account for restitution, fines, and court costs. Such deductions were authorized by statute, 42 Pa. C.S.A. Sec. 9728(b)(5) and the court rejected the prisoner's claim that a 20% deduction from his account created a financial hardship, since he received room, clothing, and board and did not allege what he could not afford as a result of the deductions. Buck v. Beard, 834 A.2d 696 (Pa. Cmwlth 2003).

Inmate Property

     Federal correctional officers were exempt from liability for damages to prisoner's eyeglasses, sent to prison laundry in pocket of his coat, during move from his former cell to administrative segregation. Under Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2680, officers were entitled to immunity under "detention of goods" exception to liability, even though they were not aware that the eyeglasses were in their possession. Bramwell v. U.S. Bureau of Prisons, #02-55516, 348 F.3d 804 (9th Cir. 2003).

Mail

     Prison security and rehabilitation goals were not sufficient to justify a complete ban on gifts of periodicals to prisoners. Rice v. State of Kansas, No, 89,759, 76 P.3d 1048 (Kan. App. 2003).

Medical Care

EDITOR'S CASE ALERT:

     California Supreme Court rules that mentally ill inmates, placed in mental institutions after the conclusion of their sentences, may not be forced to take anti-psychotic drugs unless they are found to be an immediate danger to themselves or others or incompetent to refuse treatment. In re Qawi, No. S100099, 2004 Cal. LEXIS 1.

     Prisoner whose medical condition (chronic hypertension, a serious kidney disorder, and an enlarged prostate) caused him to urinate as often as three to four times an hour, did not state a claim for deliberate indifference to his serious medical needs based on difficulties he allegedly experienced when forbidden by regulation to go to the bathroom during head count. Simpson v. Overton, #03-1151, 79 Fed. Appx. 117 (6th Cir. 2003).

     Correctional officers and prison nurses did not act with deliberate indifference to prisoner's serious medical needs by refusing for two days to provide him with prescribed pain pills because he was not wearing pants at the time that the medication was distributed. Court finds that the alleged "no pants, no service" policy did not demonstrate a disregard for the prisoner's health, and the defendants stated that they regarded the plaintiff's action of not wearing his pants as constituting a refusal of the medication. West v. Millen, #02-4055, 79 Fed. Appx. 190 (7th Cir. 2003).

     Correctional policy allegedly denying a prisoner medical treatment for Hepatitis C because he would not participate in a prison substance abuse program was cruel and unusual punishment in violation of the Eighth Amendment. Court finds that Hepatitis C is a serious medical condition, that physicians had prescribed treatment, and that the plaintiff prisoner had been free of drug or alcohol use for over two years. Domenech v. Goord, 766 N.Y.S.2d 287 (Sup. 2003).

Prison Litigation Reform Act: Exhaustion of Remedies

     Federal appeals court rules that a dismissal of a prisoner's civil rights lawsuit for failing to exhaust administrative remedies was improper in the absence of prior notice and an opportunity to respond being provided to the prisoner. Mojias v. Johnson, No. 03-0121, 2003 U.S. App. Lexis 24693 (2nd Cir. 2003).

     A genuine factual issue as to whether a prisoner exhausted his administrative remedies concerning his grievance over missing a night-time dosage of prescribed pain medication precluded summary judgment for state Department of Corrections Commissioner in prisoner's federal civil rights lawsuit. Richardson v. Goord, #02-289, 347 F.3d 431 (2nd Cir. 2003).

Prison Litigation Reform Act: Similar State Statutes

     Oregon state statute, Or. Rev. Stat. Sec. 30.650, prohibiting an award of non-economic damages to a prisoner who did not establish economic damages did not violate state constitutional guarantees of a remedy for violations of his rights or of a right to trial by jury. Voth v. State of Oregon, #01C-15561, A117697, 78 P.3d 565 (Or. App. 2003).

Prison Litigation Reform Act: "Three Strikes" Rule

     Prisoner who had previous federal civil rights claims dismissed had to supply court with copies of dismissal orders before filing an amended complaint in his current lawsuit, so it could be determined if they were judged to be frivolous, malicious, or to have failed to state a claim, and therefore to bar him from proceeding as a pauper under the "three strikes" provision of the Prison Litigation Reform Act (PLRA), 28 U.S.C. Sec. 1915(a). Abreu v. Ramirez, 284 F. Supp. 2d 1250 (C.D. Cal. 2003).

Prisoner Assault: By Inmates

     Corrections employee and prison doctors were not entitled to qualified immunity brought by prisoner who suffered a fractured skull as a result of an attack by his co-defendant in a criminal trial. Prisoner claimed that no action was taken to transfer him or separate him from his attacker, despite knowledge of the hostility between them. Inadequate medical care claims also asserted, based on alleged transfer to facility not equipped to address prisoner's medical needs, and three-week delay of doctor at new facility in examining prisoner. Scicluna v. Wells, No. 02-2117, 345 F.3d 441 (6th Cir. 2003).

Prisoner Restraint

     Correctional officers did not violate inmate's Eighth Amendment rights by restraining him for approximately 20 hours on a stretcher. Prisoner had kicked a door and assaulted a correctional officer, and after he was placed on a stretcher, the officers loosened his handcuffs and allowed him "numerous" bathroom breaks, as well as food, liquids, and medications. Action in feeding him a disciplinary diet of "nutra-loaf" was also not an Eighth Amendment violation, despite the prisoner's claim that he experienced adverse effects, including vomiting, burning in his chest and throat, and frequent bowel movements. These effects were not "serious medical conditions," and there was no order or instruction from medical personnel to stop the "nutra-loaf" diet. Myers v. Milbert, 281 F. Supp. 2d 859 (N.D.W.Va. 2003).

Prisoner Transfer

     Trial court improperly dismissed prisoner's lawsuit claiming that prison officials violated his First Amendment and due process rights by transferring him to administrative segregation in a special housing unit after his appeal of his rule violation resulted in an order for a new hearing. Jackson v. Carey, No. 01-17126, 2003 U.S. App. LEXIS 26264, (9th Cir. 2003).

Privacy

     Assignment of female correctional officers to supervise male prison living areas was not a violation of male prisoner's First, Fourth, Eighth, or 14th Amendment (equal protection) rights. The prisoner's privacy rights were minimal and the state had a legitimate interest in providing equal employment opportunities to female officers and in flexibility in personnel staffing. Sinclair v. Stalder, #03-30456, 78 Fed. Appx. 987 (5th Cir. 2003).

Procedural: Evidence

     Admission of hearsay evidence that psychiatrist diagnosed plaintiff prisoner as faking the mental trauma he claimed to have sustained as a result of his solitary confinement without clothing or sustained access to running water was improper. Prisoner was therefore entitled to a new trial in his civil rights lawsuit alleging a violation of his Eighth Amendment rights. Mahone v. Lehman, #02-35622, 347 F.3d 1170 (9th Cir. 2003).

Public Protection

    Correctional agency, officials, and employees had no duty to protect a specific individual from assault by an escaped prisoner. Woman assaulted by inmate who escaped from a technical college at a prison facility therefore could not be awarded damages. Alabama Department of Corrections v. Thompson, 855 So. 2d 1016 (Ala. 2003).

Religion

     Prison officials were improperly granted summary judgment in Muslim prisoner's lawsuit claiming that his religious freedom rights were denied by refusal to feed him an "Eid ul Fitr" feast in his cell. Trial court improperly inquired into the religious significance of the feast after finding that the prisoner sincerely believed it to be religiously significant even though served to other prisoners on a day delayed from its actual religious observance. Ford v. McGinnis, No. 02-0205, 2003 U.S. App. Lexis 25224 (2nd Cir. 2003).

     Correctional employee's "non-theistic" spiritual belief that he should not cut his hair was not a protected religious belief sufficient to challenge the state correctional department's grooming policy, since it was merely based on his own "personal and philosophical" choices. His desire to "live simply and avoid excessive pride" did not qualify for a possible religious exemption from the grooming policy. Luken v. Brigano, #CA2003-01-007, 797 N.E.2d 1047 (Ohio. App. 12 Dist. 2003).

     Requiring an Orthodox Jewish prisoner to fill out a standard prison form in order to apply to receive kosher meals was not a "substantial burden" to his right to free exercise of his religion. Resnick v. Adams, #01-56710, 348 F.3d 763 (9th Cir. 2003). Editor's Note: A prior decision in this case, Resnick v. Adams, No. 01-56710, 317 F.3d 1056 (9th Cir. 2003), reported in 2003 JB May, was withdrawn, and this opinion substituted.

Segregation: Disciplinary

     Prisoner's transfer to a long-term segregation unit for 120 days in disciplinary custody did not impose an "atypical and significant hardship" on him in relation to ordinary life in prison, so that no liberty interest requiring due process was involved. Brown v. Blaine, 833 A.2d 1166 (Pa. Cmwlth. 2003).

Sexual Assault

     Prison superintendent and assistant superintendent could not be held personally liable for correctional officers alleged sexual assault on female prisoner in her cell, in the absence of any evidence that they were personally involved in the incident, had any actual or constructive knowledge of past violations which they failed to remedy, were grossly negligent in supervising the officer, or were deliberately indifferent to a known risk of harm. Morris v. Eversley, 282 F. Supp. 2d 196 (S.D.N.Y. 2003).

Strip Search: Prisoners

EDITOR'S CASE ALERT:

     Inadequate definition of "strip search" in prisoner's civil rights lawsuit required a new trial following jury verdict for county jail officials on claims that he was unconstitutionally strip searched while being processed in after two arrests on misdemeanor charges. Jury instructions defined a strip search as necessarily including a look inside the prisoner's mouth and armpits. Wood v. Hancock County Sheriff's Dept., No. 03-1564, 2003 U.S. App. Lexis 26459 (1st Cir. 2003).

     Prison's conducting of visual body cavity searches of sequestered, dangerous prisoners after they left a recreation area was justified by legitimate security concerns and therefore did not violate prisoners' rights. Practice of using only male staff members to conduct search of male prisoners, and taking precautions to avoid unnecessary viewing of prisoners by others not directly involved in the searches adequately protected prisoners' privacy rights. Skundor v. McBride, 280 F. Supp. 2d 524 (S.D.W.Va. 2003).

     Court grants permanent injunction against county jail's policy of strip-searching all newly arrived pretrial detainees without individualized reasonable suspicion that they possessed contraband. Dodge v. County of Orange, 282 F. Supp. 2d 41 (S.D.N.Y. 2003).

Telephone Access

EDITOR'S CASE ALERT:

     Barring prisoners from making phone calls in languages other than English without prior authorization is not a violation of First Amendment rights. Boriboune v. Litscher, No. 03-1747 , 2003 U.S. App. Lexis 26540 (7th Cir.).

Voting

     Federal appeals court orders hearing in lawsuit challenging Florida's ban on felons voting. Plaintiffs claim that imposition of ban was motivated by intent to discriminate against African-Americans. Johnson v. Governor of the State of Florida, #02-14469, 2003 U.S. App. Lexis 25859 (11th Cir. 2003).