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

Assault and Battery: Handcuffs

     Surgeon awarded $33 million in damages for permanent nerve damage to hand, resulting in inability to perform surgery unassisted, following tight handcuffing when detained by Los Angeles police who mistakenly believed that the rental car he was driving was stolen. Police department responsible for $14.2 million of award, with rental car firm which placed license plates on car which were reported stolen to pay $18.8 million. Gousse v. City of Los Angeles, No. BC252804, Superior Court of Los Angeles County, filed June 21, 2001, jury award, November 19, 2003. Reported in the Los Angeles Times, November 20, 2003.

Assault and Battery: Physical

     Officers used unreasonable force in attempting to detain man with high blood pressure and diabetes who had committed no crime, but had simply changed his mind about waiting with them for requested ambulance to arrive after previously telling them that he was not feeling well. Officers were not entitled to qualified immunity for using force to detain him, and allegedly continuing to use force against him after he was handcuffed. Thompson v. Douds, No.2D02-3972, 852 So. 2d 299 (Fla. App. 2003).

     Man arrested for burglary did not convince trial court that officers had thrown him out of a third story window of a school he was burglarizing, when his claim was asserted, for the first time, nine months later, and he had earlier admitted jumping from the window. Additionally, medical records showed no signs of an injury to his head, refuting his claim that the officers had hit him with a flashlight. Summary judgment entered for defendant officers. Jeffreys v. Rossi, 275 F. Supp. 2d 463 (S.D.N.Y. 2003).

     Officers acted in an objectively unreasonably manner in their use of force during arrest of motorist when they allegedly kicked him and subjected him to knee strikes after he was subdued and further use of force was unnecessary. Coleman v. Rieck, 253 F. Supp. 2d 1101 (D. Neb. 2003).

Defamation

     State investigator's allegedly defamatory statements to the FBI concerning an FBI agent's purported addiction to drugs and homosexual relationship with his psychiatrist were insufficient to support a federal civil rights claim for violation of his protected liberty interests in his employment. Defamation itself is not a constitutional claim, and an injury to reputation does not violate a protected liberty interest, nor does the disclosure of medical records. "Even an allegation of diminished employment opportunities resulting from harm to reputation is insufficient to state a due process claim." Walker v. Wilson, No. 01-6455, 67 Fed. Appx. 854 (6th Cir. 2003).

     Police detective was not liable for either defamation or intentional infliction of emotional distress under District of Columbia law for issuance of a press release identifying the plaintiff as having been involved in a murder, along with the arrestee's picture. The issuance of such press releases was within the scope of the duties of police investigators and it did not cause economic or physical harm to the plaintiff. Further, the release of the information involved the public's right to information and public safety. Liser v. Smith, 254 F. Supp. 2d 89 (D.D.C. 2003).

Defenses: Qualified Immunity

     Federal appeals court did not have jurisdiction to decide whether officers acted reasonably for purposes of their qualified immunity defense in a lawsuit seeking damages for injuries suffered when they allegedly improperly restrained plaintiff during an epileptic seizure. There were disputed versions of the facts of the incident, and the officers failed to limit their appeal to a "purely legal issue," requiring further proceedings to resolve factual disputes. Parks v. Darby Borough, No. 01-3421, 70 Fed. Appx. 64 (3d Cir. 2003).

     Trial court's grant of partial summary judgment to property owner claiming that officers violated his Fourth Amendment rights by searching his backyard and ticketing his vehicles without a warrant was not immediately appealable, despite its rejection of the officers' qualified immunity defense, since the officers were not willing to accept the plaintiff's version of the facts for purposes of appeal, arguing that a genuine issue of material fact barred summary judgment for the property owner. Brocuglio v. Proulx, No. 02-7301, 67 Fed. Appx. 58 (2nd Cir. 2003).

Defenses: Sovereign Immunity

     Under Connecticut law, state statutory requirement that sheriffs purchase personal liability insurance for damages caused by their wrongful acts was not a legislative waiver of sovereign immunity for claims against the state and sheriffs in their official capacity. The purpose of the statute was to protect the public from the sheriffs' acts and hold the sheriffs personally liable, not to authorize claims against the government. Connecticut Supreme Court also holds that an exception to sovereign immunity for acts by state officers in excess of their legal authority only applies to lawsuits seeking injunctive or declaratory relief, and does not authorize claims for monetary damages, overruling prior caselaw. Miller v. Egan, No. 16730, 828 A.2d 549 (Conn. 2003).

Defenses: Statute of Limitations

     In a lawsuit brought by the family of an man shot and killed by gang members after it was allegedly negligently revealed that he was an FBI informant, the right to bring the lawsuit under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671-2680, accrued at the latest on the date when family members attended hearings at which the relationship between FBI agents and gang members was revealed and widely reported in the media. Accordingly, the court holds that the lawsuit should be dismissed as time-barred under the applicable statute of limitations. McIntyre v. United States, 254 F. Supp. 2d 183 (D. Mass. 2003).

Dogs

     Arrestee allegedly bitten by police dog while he was handcuffed and in custody did not sufficiently state a claim against the city or police department for inadequate training of its canine handlers when he failed to explain what training would have avoided his injuries. Additionally, it was undisputed that individual defendant trainer of police canine handlers did not instruct them that they could use the force of a police dog biting a handcuffed suspect. Viehmeyer v. City of Santa Ana, No. 02-56157, 67 Fed. Appx. 470 (9th Cir. 2003).

False Arrest/Imprisonment: No Warrant

     Arrestee could not pursue false arrest or due process claims against former deputy chief, on the payroll of drug dealer, who allegedly had him arrested and convicted on the basis of evidence planted by dealer who suspected that the arrestee was a federal informant. The arrestee was engaged in regular deliveries of drugs, and there was no evidence that the deputy chief had knowledge that the evidence was planted at the time of the arrest. McCann v. Mangialardi, No. 02-2409, 337 F.3d 782 (7th Cir. 2003).

     Whether arrestee's detention for 72 hours before an arraignment for a probable cause hearing violated his rights depended on whether he was being held pursuant to his warrantless arrest for drunken driving or on the basis of a warrant from another jurisdiction, as detention on the warrant would not require a probable cause hearing within 48 hours. Arrestee also presented a viable claim that he was subsequently improperly imprisoned for failure to pay a fine and court costs following his conviction for drunken driving, without inquiry into his ability to pay. Alkire v. Irving, #00-4567, 330 F.3d 802 (6th Cir. 2003).

     Statements by witnesses and bar bouncer, and officer's own observation of laceration on bouncer's head provided probable cause to arrest female bar patron for alleged assault on bouncer, despite her argument that the bouncer had assaulted her and that she claimed there were other witnesses who could support her version of the incident. Summary judgment granted for municipal defendants. Maxwell v. City of New York, 272 F. Supp. 2d 285 (S.D.N.Y. 2003).

     Under federal law, an indictment "fair upon its face, by a properly constituted grand jury" is dispositive as to whether there was probable cause for an arrest, so that police officers indicted on charges of tampering with records could not pursue false arrest civil rights claim. There was, however, a genuine issue of fact as to whether city officials engaged in retaliation against the officers in violation of their First Amendment right to express opinions about a matter of public concern, requiring further proceedings on that claim. Bakos v. City of Olmsted Falls, No. 02-3399, 73 Fed. Appx. 152 (6th Cir. 2003).

     Officer could have reasonably believed that he had probable cause to arrest a juvenile female for evading detection when she drove away as he ran up behind her vehicle calling out "police, stop," after seeing people begin to flee from the area around her vehicle when he shined a spotlight on it. Officer was therefore entitled to qualified immunity for making an arrest, but there were genuine issues of fact precluding summary judgment as to whether or not he was justified in using deadly force in firing at the tire of her vehicle after she allegedly pulled to the right, nearly striking him, as he ran alongside the vehicle. Flores v. City of Palacios, 270 F. Supp. 2d 865 (S.D. Tex. 2003).

     Arrestee's guilty plea to a charge of resisting arrest barred his federal civil rights claim against the officers for purportedly arresting him for disorderly conduct and assault without probable cause. Case v. Milewski, No. 01-3803, 327 F.3d 564 (7th Cir. 2003).

False Arrest/Imprisonment: Warrant

     Property owner and manager were not "seized" for purposes of a Fourth Amendment claim as a result of the issuance of arrest warrants against them when they were both able to merely pick up a summons and complaint against them at the police station and had to attend court on several occasions before charges concerning alleged housing code violations were dropped. They suffered no "deprivation of liberty" by simply being required to attend court proceedings in this manner. Their claim that the warrants were issued without probable cause did not amount to "abuse of process" either, in the absence of a claim that officials who obtained the warrants intended to accomplish something other than their criminal punishment. Zak v. Robertson, 249 F. Supp. 2d 203 (D. Conn. 2003).

Firearms Related: Intentional Use

     Officer who shot a suspect as he attempted to drive away in a vehicle did not act reasonably if there was no evidence that he posed a threat of serious harm to others or was armed with a weapon. Haugen v. Brosseau, #01-35954, 339 F.3d 857 (9th Cir. 2003).

     A genuine issue of material fact as to whether a house occupant being arrested for disorderly conduct was or was not "lunging" at a police officer when the officer shot and killed him precluded summary judgment in favor of the officer in an excessive force lawsuit brought by the decedent's estate. LA v. Hayducka, 269 F. Supp. 2d 566 (D.N.J. 2003).

     Highway patrol officer did not violate the rights of an allegedly intoxicated motorist he shot and killed while fighting in the motorist's vehicle as the suspect attempted to drive off. Officer could reasonably have feared for his own life, as well as the life and safety of others traveling on the highway, having failed to prevent the suspect from driving and being in the motorist's vehicle struggling with him as it went down the road. Anderson v. Cash, No. 02-6356, 70 Fed. Appx. 251 (6th. Cir. 2003).

First Amendment

     Deputy sheriff had probable cause to arrest protester passing out leaflets about "jury nullification" in a courthouse lobby who allegedly failed to leave when asked to do so. There was no First Amendment violation, as the courthouse lobby was not a traditional public forum. Braun v. Baldwin, No. 02-4143, 346 F.3d 761 (7th Cir. 2003).

     First Amendment rights of "erotic dancing" business were not violated by city code prohibiting consumption of alcohol in establishments lacking valid liquor licenses. The ordinance in question did not regulate protected expression and applied equally to all businesses. Talk of the Town v. Dept. of Finance and Business Services, No. 01-15303, 343 F.3d 1063 (9th Cir. 2003).

Negligent or Inadequate Investigation/Failure to Investigate

     Police detective did not have any duty under federal law to investigate claims that arresting officer engaged in criminal activity in using allegedly excessive force against arrestee, and was therefore entitled to summary judgment on federal civil rights claim against him asserted by arrestee. Hale v. Vance, 267 F. Supp. 2d 725 (S.D. Ohio 2003).

Miscellaneous: Towing

     Owner of auto which was impounded for evidentiary purposes and retained on condition that he pay towing and storage fees could not pursue civil rights claim to regain his auto when he failed to show that available state-law remedies were inadequate, violating his due process rights. Plaintiff did, however, have standing to challenge the constitutionality of the city's action in spray-painting his vehicle after 30-days of impoundment, as statute under which it was done only applied to abandoned, lost, stolen or unclaimed cars which the city had a right to dispose of. Lee v. City of Chicago, No. 02-1503, 330 F.3d 456 (7th Cir. 2003).

Procedural: Appeal

     Federal appeals court could not review a jury verdict against the plaintiff on her claims for unreasonable search and seizure, false arrest, and malicious prosecution when she failed to challenge that verdict in the trial court. She could have done so by filing a motion for judgment as a matter of law or for a new trial. The trial court's prior denial of her summary judgment motion could not be reviewed by the appeals court once there was a full trial on the merits and an award against her by the jury. Eaddy v. Yancey, No. 02-2924, 317 F.3d 914 (8th Cir. 2003).

Procedural: Discovery

     Plaintiff pursuing claim for death of arrestee in a paddy wagon on the way to a hospital was not entitled to conduct depositions of police officers who conducted an investigation of the incident or to request discovery of documents produced by the police department in the course of its investigation. "Law enforcement investigatory privilege" protected this material from discovery, and "deliberative process privilege" also protected the documents generated in the course of the investigation. Additionally, the trial court held that a stay of discovery, for a limited time, was a reasonable way to protect the defendant officers, accused of excessive force, in terms of their Fifth Amendment rights against self-incrimination, should they be criminally indicted as a result of a pending investigation by the U.S. Department of Justice. Jones v. City of Indianapolis, 216 F.R.D. 440 (S.D. Ind. 2003).

Public Protection: Hostages

     New York intermediate appellate court upholds award of $3 million for the pain and suffering of a hostage shot and killed by police during an exchange of gunfire with a bank robber. Court also upholds an award of $969,001 to the hostage's brother for emotional distress in seeing his sister shot and killed. Court orders further proceedings, however, on the possible apportionment of liability between police and the bank robber. Police department guide and order on deadly force and hostage situations were properly admitted into evidence for purposes of showing whether officers deviated from them. Lubecki v. City of New York, 758 N.Y.S.2d 610 (A.D. 1st Dept. 2003).

Public Protection: Motoring Public and Pedestrians

     State troopers were not liable for death of motorist struck by out of control vehicle as she took field sobriety test at the side of the highway. Estate of George v. Michigan, 63 Fed. Appx. 208 (6th Cir. 2003), upholding Estate of George v. Michigan, 136 F. Supp. 2d 695 (E.D. Mich. 2001), previously reported in the September 2001 Liability Reporter.

Pursuits: Law Enforcement

     Officer's action of drawing his gun when approaching a suspect's vehicle at the conclusion of a one-mile pursuit was not unreasonable under the circumstances. Officer was entitled to qualified immunity for the shooting of the motorist when he accidentally slipped and his gun discharged.  McCoy v. City of Monticello, No. 02-2941, 342 F.3d 842 (8th Cir. 2003).

     Officer was entitled to qualified immunity for shooting and killing a suspect who turned around and drove his vehicle towards officers at the conclusion of a high-speed pursuit. Officer could reasonably believe that the motorist was posing a significant threat of physical injury or death to himself and others. Hernandez v. Jarman, No. 02-3519, 340 F.3d 617 (8th Cir. 2003).

     Proper legal standard for establishing liability of police officers engaged in a high-speed chase which injures third parties is "willful and wanton misconduct" under Illinois law, not ordinary negligence, rejecting argument by plaintiff motorists injured in collision with pursued vehicle in question certified for decision by the trial court. Lanning v. Harris, No. 3-02-0637, 796 N.E.2d 667 (Ill. App. 3d Dist. 2003).

Racial Discrimination

     Older African-American motorist taken into custody after being stopped with an expired driver's license, did not present adequate evidence of racial motivation for either the stop or the arrest. Officer was not entitled to qualified immunity for making the initial traffic stop, because of a factual dispute as to whether the motorist was driving erratically, but holding the driver in custody to determine whether he was the person sought in an outstanding 22-year-old felony warrant for someone at his address was objectively reasonable. Bingham v. City of Manhattan Beach, #01-56044, 341 F.3d 939 (9th Cir. 2003).

Search and Seizure: Home/Business

EDITOR'S CASE ALERT:

     Nightclub patrons strip-searched and detained for three hours because they were present during execution of search warrant on premises for evidence of crack cocaine transactions were properly awarded $100 in actual damages and $15,000 in punitive damages each. Sheriff was not entitled to qualified immunity for conducting searches without particularized reasonable suspicion or probable cause. Williams v. Kaufman County, No. 02-10500, 343 F.3d 689 (5th Cir. 2003).

     Homeowner did not have any reasonable expectation of privacy in a basement apartment he rented out to tenants, who allegedly grew marijuana there. Shamaeizadeh v. Cunigan, No. 01-6326, 338 F.3d 535 (6th Cir. 2003).

     Warrants for the search of a residence were not supported by probable cause when the affidavit provided no basis to support the belief that evidence of crime would be found there and broadly sought "every conceivable kind of document" relating to the residents' personal and business financial activities. Affidavit submitted was used to obtain warrants for a total of 16 locations, with only the particular location or person to be searched altered in the last section. Officers were not entitled to qualified immunity for conducting search, as no reasonable officer would have believed that the affidavit provided probable cause. Officers who were not involved in the search, however, but were present, were entitled to qualified immunity in detaining a resident during the execution of the warrant, since they could have reasonably believed that their actions were lawful. Williams v. County of Santa Barbara, 272 F. Supp. 2d 995 (C.D.Cal. 2003).

Strip Searches

     Police officer who allegedly subjected two African-American college students to a strip search after stopping them for speeding was entitled to qualified immunity for conducting the searches without reasonable suspicion that they were concealing contraband or weapons, for his alleged verbal abuse of them, and for the "humiliating" way in which the strip searches were allegedly conducted. Evans v. City of Zebulon, No. 02-16424, 2003 U.S. App. Lexis 23479 (11th Cir.).

Arbitration Procedures

     Prior precedent reversed; the Ninth Circuit now approves of compulsory Title VII arbitration. EEOC v. Luce, Forward, Hamilton & Scripps, 345 F.3d 742 (9th Cir. en banc 2003). Arbitrator declines to decide a disability discrimination complaint. Arbitrators should not look to outside law to confer jurisdiction, and must "not to add to the terms of the contract." Ohio Dept. of Health and Ohio CSEA-AFSCME, L-11, 118 LA (BNA) 1361 (Murphy, 2003).

Arbitration Punishment Awards - Right of Courts to Interfere

     Ohio appellate court concludes that an arbitrator should not have reinstated an officer who notified a colleague that his family was under investigation. Summit County Sheriff v. FOP, #21303, 2003 Ohio 1133, 2003 Ohio App. Lexis 10624 (2003).

Background Investigations

     Firefighters, police officers and others who work at an airport need security clearances under 18 U.S. Code §1001(a)(2). The Fourth Circuit, in reversing a lower court, held that the FAA may lawfully include questions about relevant misdemeanor convictions in addition to felonies. U.S. v. Baer, 324 F.3d 282 (4th Cir. 2003), dismissed by 274 F.Supp.2d 778, 2003 U.S. Dist. Lexis 13240 (E.D. Va. 2003).

Civil Liability

     New York's highest court holds that an administrative finding of guilt by a state regulatory body, in a sexual harassment complaint, does not prevent the accused from denying liability in a damage suit for sexual assault. The doctrine of collateral estoppel did not apply. Jeffreys v. Griffin, 2003 NY Int. 125, 2003 N.Y. Lexis 3409 (2003).

     Sheriff's employees, whose First Amendment rights were violated when management took adverse employment actions against them because of their union organizing activities, did not have legal standing to pursue a claim for indemnification by the state for damages that the sheriff's estate did not have the funds to pay. St. George v. Gordon, 825 A.2d 90 (Conn. 2003).

Collective Bargaining - Duty to Bargain

     Federal court dismisses a suit seeking to require the DHS to bargain with airport security screeners. There is no 1st or 5th amendment duty for a public agency to bargain with its union members, and there was a rational reason for the Congress not to include screeners in the statutory plan of federal bargaining. AFGE, TSA L-1 v. Loy, #03-1719 & 03-0043, 281 F.Supp.2d 59, 2003 U.S. Dist. Lexis 15750, 173 LRRM (BNA) 2358; AFGE, TSA L-1 v. Loy, #03-0043, 41 (2033) G.E.R.R. (BNA) 1121 (D.D.C. 2003).

     Arbitrator denies a grievance that an employer eliminated the "verbal warning" stage from the discipline matrix for smoking violations. Smoking rules are more serious and "fine tuning" of a penalty for given violations is traditionally considered to be a subject upon which arbitrators are not to substitute their judgment for that of the employer. Fairfield Mfg. and UAW L-2317, 118 LA (BNA) 1485 (Fullmer, 2003).

Criminal Liability

     Michigan appellate court upholds a criminal conviction of a police officer that beat a prisoner in the stationhouse. Peo. v. Milton, 668 N.W.2d 387 (Mich. App.2003).

     A former sheriff's deputy was sentenced to life in prison for helping plot the assassination of the incumbent sheriff, who was killed by a sniper at a campaign rally. Comm.of Ky. v. Morris, (Pulaski Co., Ky. 2003).

Disciplinary Appeals

     MSPB adopts at online appeals process for federal employees. "Interim Regulatory Changes for Implementation of e-Appeal and e-Filing," 68 (202) Federal Register 59859-65 (20 Oct. 2003).

     Court rejects a demand that a remanded Arbitration Award be sent to a second arbitrator. Unless the city can show bias, it is more efficient to remand the dispute to the original arbitrator. City of Wilmington v. AFSCME L-1102, 2003 Del. Ch. Lexis 74 (Del. Ch. 2003).

Disciplinary Discovery

     New York's Public Employment Relations Board holds that management has a duty to furnish the union with the investigative reports, including summaries and conclusions, so that a union is able to defend an employee at a disciplinary hearing. IBT L-264 and Erie County Sheriff, #U-23017, 2003 NYPER (LRP) Lexis 86 (NYPERB 2003).

Disciplinary Punishment - In General

     California appeals court affirms the termination of an off-duty officer who slapped a girlfriend and then called a male detective a faggot and a woman detective a lesbian. Soldo v. City of Los Angeles, #B161186, 2003 Cal. App. Unpub. Lexis 7260 (2nd Dist. 2003).

Disciplinary Punishment - Disparate Treatment

     Illinois Labor Board declines to interfere with disciplinary action against officers who did not report outside earnings on their tax returns. There was no proof of union bias, and "the fact that [the officers] were more active members of the [union] is a mere coincidence." Metrop. Alliance of Police #165 and Vil. of Bensenville, #S-CA-00-197, 18 PERI (LRP) ¶2076, 2003 PERI (LRP) Lexis 1 (ILRB 2003).

FLSA - Administrative & Executive Exemptions

     The Supreme Court has declined to review an appellate court holding that supervisory Border Patrol agents are "executives," and are exempt from the FLSA's overtime provisions. Lotz v. United States, 322 F.3d 1328, 8 WH Cases2d 929 (Fed. Cir. 2003); cert. den. #03-146, 2003 U.S. Lexis 8016, 72 Law Week 3307 (2003).

FLSA - Overtime - in General

     Arbitrator rejects a claim for two hours overtime because a corrections officer was required to visit a physician to obtain a note excusing a two-day sick period; officer was entitled to be paid for his $15 co-pay and $11 vehicle expense. U.S. Penitentiary and AFGE L-2343, 118 LA (BNA) 1324 (Pratte, 2003).

oooo Editor's Case Alert oooo

Family, Medical & Personal Leave

     Federal appeals court flatly rejects a claim that a worker cannot be fired for inefficiency or other valid reason because he is on FMLA leave. Phelan v. City of Chicago, 347 F.3d 679, 92 FEP Cases (BNA) 1389,2003 U.S. App. Lexis 21344, 9 WH Cases2d (BNA) 7 (7th Cir. 2003).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     A worker impaired by attention deficit hyperactivity disorder (ADHD) was not "disabled" within the meaning of the ADA, because he was not unable to work in a broad class of jobs, even though he was unable to work steadily in his current position. Whitlock v. Mac-Gray, 345 F.3d 44 (1st Cir. 2003).

     An employee with multiple sclerosis (MS), who missed work because of headaches, dizziness, vertigo and extreme fatigue, was not disabled within the meaning of the ADA. "She has merely shown that she has had to take many unscheduled absences." Croy v. COBE Labs, 345 F.3d 1199 (10th Cir. 2003).

     An epileptic employee who was fired after several incidents of confrontational and threatening behavior was not disabled or regarded as disabled. Epilepsy did not limit his major life activities outside the workplace. The fact that he was advised to seek professional anger-control assistance did not establish that management regarded him as disabled. Brunke v. Goodyear Tire and Rubber, 344 F.3d 819 (8th Cir. 2003).

Health Insurance & Benefits

     Arbitrator holds that a county did not violate the collective-bargaining agreement when it negotiated a new health plan. Some employees were disadvantaged by the changes, and others benefited. Clark Co, [Ohio] Sheriff and FOP, 118 LA (BNA) 1493 (Graham, 2003).

Last Chance Agreements

     Court sets aside an arbitrator's reinstatement ruling, because he did not consider prior disciplinary action, which was recent and uncontested, warning the grievant that further misconduct would result in his termination. City of Wilmington v. AFSCME L-1102, #19561-NC, 2003 Del. Ch. Lexis 26, 2003 WL 1530503, 173 LRRM (BNA) 2278 (Del. Ch. 2003).

Out of Title Assignments

     Arbitrator holds that management did not require clerk/typist-receptionist to perform out-of-title work when, in light of the 9-11 acts of terrorism, it required her to identify visitors, oversee a sign-in sheet, buzz in visitors and direct them to destinations within the building. The additional duties are typical of a receptionist-clerk position. Garden City and CSEA L-1102 (AFSCME), 118 LA (BNA) 1470 (Gregory, 2003).

Personnel Manuals

     Distribution of an employee handbook constitutes reasonable notice, "regardless of whether the affected employee actually reads it." An employer satisfies its burden of notifying it employees of a manual by posting it on a webserver. Mannix v. Co. of Monroe, #02-1001, 348 F.3d 526, 2003 U.S. App. Lexis 22561, 2003 FED App. 0390P (6th Cir. 2003), citing Highstone v. Westin, 187 F.3d 548 at 552-3 (6th Cir. 1999).

Privacy Rights

     Celebrity Defense Dept. employee receives $595,000 in a negotiated settlement, because DoD had leaked personal information about her in violation of the Privacy Act and the Federal Tort Claims Act. Linda Tripp was a major source in the Monica Lewinski scandal that culminated in the impeachment of President William J. Clinton. Tripp v. Dept. of Defense, #99-2554 and #01-157, 41 (2033) G.E.R.R. (BNA) 1119 [settlement reported]; 2003 U.S. Dist. Lexis 17074 [protective order] (D.D.C. 2003).

Promotional Rights, Procedures and Performance Appraisals

     Michigan appeals court reinstates an arbitration award directing the city to promote a controversial officer who had shot 4 people is 6 years. Detroit Police Officers Assn. v. City of Detroit, #241574, 2003 Mich. App. Lexis 2850 (Unpub. 2003).

Race Discrimination - In General

     Civil Service Board members are not entitled to absolute immunity from suit, in a case where the provisional fire chief challenged his suspension and claimed that the process was tainted by racial discrimination. Fifth Circuit affirms the result, and the Supreme Court has denied review. Turner v. Houma Fire and Police Civ. Serv. Bd., 229 F.3d 478; cert. den. #03-367 (2003).

Reductions in Force

     Federal court refuses to enjoin the Dept. of Homeland Security for reducing its force of airport screeners. Furloughed former screeners lacked standing to seek an injunction because they had already been laid off and could not face additional harm from a further force reduction. AFGE, TSA L-1 v. Loy, #03-1719, 2003 U.S. Dist. Lexis ---, 41 (2033) G.E.R.R. (BNA) 1121 (D.D.C. 2003).

Sexual Harassment - Verdicts, Settlements & Indemnity

     New Jersey Supreme Court affirms a $750,000 compensatory damage award to a male officer who claimed harassment by a woman coworker. It set aside a $3 million in punitive damages against the Dept. of Corrections, and remanded the case because of faulty jury instructions. Lockley v. State of New Jersey DoC, 177 N.J. 413, 828 A.2d 869 (N.J. 2003).

Shift Rotation and Work Schedules

     Arbitrator holds that a partial work period is not subject to being filed as a vacant work shift. "Had the parties wished to do so, they could have so provided" but an arbitrator "cannot expand the scope of [the contract to] vacancies which may occur when an officer leaves work before the end of his or her shift." City of Kalama and Kalama Police Guild, 116 LA (BNA) 1349 (Henner, 2002).

Sick Leave and Abuse

     Arbitrator upholds a contract clause that provides that employees can accumulate 340 unused sick days for retirement purposes at $20.00 per day, but only 225 accumulated sick leave days are available for use due to illness. Peoria Bd. of Educ. and Peoria Fed. of Teachers, 118 LA (BNA) 1514 (Kenis, 2003).

Whistleblower Requirements and Protection

     Texas appellate court holds that a jailer who was supposedly terminated for reporting staffing shortages and surveillance problems did not have to abandon his administrative remedy under the Texas Whistleblower Act before filing a lawsuit. Harris Co. v. Lawson, 2003 Tex. App. Lexis 7368 (Tex. App. 2003).

Access to Courts/Legal Info

     Even if legal documents relating to pending cases were among the property allegedly destroyed by federal prison officials, prisoner had no viable claim for denial of his right of access to the courts in the absence of a showing that the loss of the materials resulted in specific prejudice to these court cases. Ortloff v. United States, #01-2725, 335 F.3d 652 (7th Cir. 2003).

     Prisoner's claim that he was not aware of his legal rights and did not have access to an adequate law library, even if true, did not have the effect under Tennessee state law of extending the statute of limitations on his claims arising out of his arrest. Claims against state employees were time barred by the statute. Simmons v. Gath Baptist Church, 109 S.W.3d 370 (Tenn. App. 2003).

Attorneys' Fees

     Prisoner who was awarded compensatory damages of $15,000 and punitive damages of $30,000 for alleged excessive force and inadequate medical care must use 25% of his damage award to pay his lawyer attorneys' fees, reducing the amount to be paid by the defendants from $40,654.75 to $29,404.75. Jackson v. Austin, 267 F. Supp. 2d 1059 (D. Kan. 2003).

Defenses: Eleventh Amendment Immunity

    Iowa State Tort Claims Act, I.C.A. Sec. 669.4, providing a limited waiver of sovereign immunity to lawsuits brought in state courts, did not expressly waive Eleventh Amendment immunity of the state and state agencies for purposes of detainee's suit against the state mental hospital, among other defendants, in federal court. Tinius v. Carroll County Sheriff Department, 255 F. Supp. 2d 971 (N.D. Iowa 2003).

     Eleventh Amendment immunity barred prisoner's claims against state probation board and prisons, as Pennsylvania did not waive its immunity for purposes of federal civil rights lawsuits, Congress did not abrogate state immunity in general, and plaintiff did not seek relief against state officers in their individual capacities. Berthesi v. Pennsylvania Board of Probation, 246 F. Supp. 2d 434 (E.D. Pa. 2003).

Defenses: Notice of Claim

     New York prisoner was entitled to file a late claim against the state for the alleged loss of his personal property during his transfer to a new correctional facility when his earlier timely, although improperly served, claim gave the state notice that he intended to pursue litigation, so that no prejudice to the state would occur. Wright v. State of New York, 760 N.Y.S.2d 634 (Ct. Cl. 2003).

     While Florida law required a prisoner asserting a claim against the state or one of its agencies to serve process on the state Department of Insurance, a non-party to the lawsuit, there was no time period within which to do so, and therefore it was not a precondition to maintaining a lawsuit against the state Department of Corrections for alleged malicious prosecution of the plaintiff prisoner on disciplinary charges of unlawful possession of wine. Cole v. Department of Corrections, No. 4D01-3462, 840 So. 2d 398 (Fla. App. 4th Dist. 2003).

Defenses: Service of Summons

     When estate of inmate who died in county jail began the process of attempting service of process in a state court lawsuit against the sheriff and his deputies before the case was removed by the sheriff to federal court, the plaintiff had the option of completing service under state procedures or under federal rules. Court finds that one defendant waived or forfeited his "failure-to-serve" defense by not moving to dismiss the claims against him for over two years after the case was removed to federal court. Schmude v. Sheahan, 214 F.R.D. 487 (N.D. Ill. 2003).

Employment Issues

     Correctional rule barring prison employees from non-work-related contact with prisoners, parolees, probationers, and their relatives and visitors did not violate employees' rights. Akers v. McGinnis, #01-18, 2003 U.S. App. Lexis 24155 (6th Cir.).

First Amendment

     Trial court improperly granted defendant correctional officials' motion for summary judgment on prisoner's claim that they retaliated against him for having successfully settled a prior lawsuit against correctional officers by transferring him to a maximum security facility and imposing discipline upon him. There was a genuine issue of material fact as to whether such retaliation was a "substantial factor" in the actions taken. Bennett v. Goord, No. 01-0184, 343 F.3d 133 (2nd Cir. 2003).

Forfeiture

     Prison "mailbox" rule applied in determining whether a prisoner submitted a timely contest of the administrative forfeiture of his van by the FBI. The prisoner's papers contesting the forfeiture were filed when he delivered them to prison officials, not when it was received by the FBI. Appeals court reverses summary judgment in favor of the government in prisoner's challenge to the forfeiture. Longenette v. Krusing, No. 00-3690, 322 F.3d 758 (3rd Cir. 2003).

Governmental Liability: Policy/Custom

     Plaintiff failed to show that county had a policy of deliberate indifference in training correctional officers in the handling of mentally ill detainees, or that any such inadequacy in county's training caused detainee's death. No liability for county for the death of detainee from heart failure while incarcerated. Carey v. Helton, No. 01-5623, 70 Fed. Appx. 291 (6th Cir. 2003).

Home Detention/Home Release

     Trial court's order prohibiting placing probationer on a home monitoring system improperly interfered with county sheriff's statutory authority under state law to regulate the manner in which she served jail time. State of Wisconsin v. Schell, No. 02-1394-CR, 661 N.W.2d 503 (Wis. App. 2003).

Inmate Funds

     Prisoner's agreement to forfeit drug proceeds as part of a plea bargain included $19,000 which had been held by his brother, and which his brother turned over to the state. State officials did not violate prisoner's civil rights in obtaining these funds, and prisoner had no standing to challenge the forfeiture of the money. Libretti v. Wyoming Attorney General, No. 02-8018, 60 Fed. Appx. 194 (10th Cir. 2003).

Mail

     Prison officials actions in preventing an inmate from corresponding with a former prisoner with whom he had formed a romantic attachment did not violate his rights. Nasir v. Morgan, #01-2519 , 2003 U.S. App. Lexis 24013 (3rd Cir.)

Medical Care

     Estate of woman who allegedly suffered a heart attack and died after being denied her daily dose of methadone for four days after she was jailed for driving without a valid license reaches $2.5 million settlement of federal civil rights lawsuit against Florida county. The defendant county had argued that the death arose from reasons unrelated to withdrawal from methadone. Estate of Johnson v. Orange County, No. 6:03-CV-655-ORL-18-KRS (M.D. Fla. Nov. 10 2003), reported in The National Law Journal, p. 26 (December 1, 2003).

     A mere difference of opinion as to what the appropriate treatment was for the plaintiff prisoner's back condition was insufficient to establish a claim for violation of his constitutional rights through deliberate indifference to his serious medical needs. Gray v. McCaughtry, No. 02-2436, 72 Fed. Appx. 434 (7th Cir. 2003).

Prison Conditions: General

     Prison officials' actions in depriving prisoner of all clothing, toiletries and property in his cell except for one pair of undershorts after he engaged in at least sixteen disciplinary violations, many involving throwing of drinks, soup, spit, urine or feces at officers near his cell, were not a violation of his Eighth Amendment rights, but were "proportionally targeted" at his misconduct. Additionally, any alleged deprivation of toilet paper was not deliberately indifferent, but negligent and inadvertent, and at worst, he was allowed one roll of such paper for a nine-day period. Trammell v. Keane, No. 01-0025, 338 F.3d 155 (2nd Cir. 2003).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner's lawsuit was improperly dismissed for failure to exhaust available administrative remedies when he was actually unable to pursue a grievance, allegedly because prison officials refused to provide him with the necessary grievance forms. Mitchell v. Horn, #98-1932, 318 F.3d 523 (3rd Cir. 2003).

     Pennsylvania prisoner failed to exhaust available administrative remedies before pursuing federal civil rights claim asserting that correctional officers failed to protect him against attack by another inmate when he did not file administrative grievances within the 15-day time period established by the state's inmate grievance system. Casey v. Smith, No. 02-4245, 71 Fed. Appx. 916 (3rd Cir. 2003).

     Prisoner's failure to exhaust available administrative remedies for the alleged confiscation of his property required the dismissal without prejudice of his federal civil rights claim alleging that the seizure of his sexually explicit materials violated his First Amendment rights. McMillian v. Litscher, No. 99-3029, 72 Fed. Appx. 438 (7th Cir. 2003).

     When defendant prison officials suggested, but did not affirmatively plead as a defense, the prisoner's failure to exhaust available administrative remedies, their dismissal motion would be converted into a motion for summary judgment by the court, with an order providing for further briefing or the production of evidence, and the plaintiff prisoner given an opportunity to respond. Torrence v. Pesanti, 239 F. Supp. 2d 230 (D. Conn. 2003).

Prison Litigation Reform Act: "Three Strikes" Rule

     Prisoner's federal civil rights lawsuit against prison officials claiming that excessive force was used against him could not be brought by him as a pauper because of the "three strikes" provision of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g) even if the dismissals of his earlier cases as frivolous or failing to state a claim took place before the effective date of the statute, when at least six previous lawsuits brought by the prisoner were dismissed in this manner, and he failed to claim that he was in any imminent danger of serious physical harm when he filed the latest lawsuit. Wallace v. Franklin, No. 02-4308, 66 Fed. Appx. 546 (6th Cir. 2003).

Prison Litigation Reform Act: Injunctions

     Provision of the Prison Litigation Reform Act imposing a 90-day limit for preliminary injunctions, 18 U.S.C. Sec. 2626, applied in the absence of detailed findings and the entry of a final order, even if trial court's order enjoining Alabama correctional officials from continuing to operate a facility in an unconstitutionally crowded and unsafe manner did not detail what they were to do. Accordingly, the injunction expired after 90-days and the court no longer could consider plans submitted by the defendant officials to carry out the mandate of the preliminary injunction. The plaintiffs, however, were free to seek another preliminary injunction. Laure v. Campbell, 255 F. Supp. 2d 1301 (M.D. Ala. 2003).

Prisoner Assault: By Officers

     Correctional officers could not be held liable for deliberate indifference to assault on prisoner by fellow officer, when there was no prior indication that the attack would take place and when they immediately intervened to remove the alleged attacker from the prisoner. Carico v. Benton, Ireland, and Stovall, #02-1340, 68 Fed. Appx. 632 (6th Cir. 2003).

Prisoner Classification

     Federal Bureau of Prisons' policy deciding that it lacked discretion to place low-risk federal prisoners in community corrections centers was based on a "clearly erroneous" interpretation of a controlling federal statute, 18 U.S.C. Sec. 3621, and the bureau's conclusion was therefore not entitled to deference. Court orders bureau to reconsider the designation of place of imprisonment for each of the plaintiff prisoners. Estes v. Federal Bureau of Prisons, 273 F. Supp. 2d 1301 (S.D. Ala. 2003).

Prisoner Discipline

     Prison disciplinary hearing finding inmate guilty of violating rules concerning correspondence procedures and providing unauthorized legal assistance to other inmates was not supported by substantial evidence in the absence of the introduction of a package (and its contents) allegedly sent to him by another prisoner. Collins v. Pearlman, 756 N.Y.S.2d 582 (A.D. 2d Dept. 2003).

     Claim that prisoner was punished "more harshly" than other inmates who also were involved in the same scheme involving sending funds outside the prison to a person who then forwarded payments back to another prisoner did not show a violation of his right to equal protection of law. The plaintiff prisoner did not present any evidence about the disciplinary histories of the other inmates involved in the scheme or the particular circumstances of their involvement in the immediate misconduct, so it could not be established that officials acted irrationally in imposing greater punishment on the plaintiff. Hill v. Davis, No. 02-2640, 58 Fed. Appx. 207 (7th Cir. 2002).

Private Prisons

     Privately owned and run correctional facility and its corrections officer acted "under color of state law" for purposes of a federal civil rights claim. Federal appeals court reinstates lawsuit by prisoner claiming that officer subjected him to cruel and unusual punishment by slamming a door on his fingers, severing two fingertips. Rosborough v. Management & Training Corporation, #03-40493, 2003 U.S. App. Lexis 22864 (5th Cir.).

Procedural: Class Actions

     Trial court's denial of state officials' motion seeking to exclude female inmates from the class in a class action lawsuit brought by male state inmates alleging inadequate medical care in violation of disability discrimination statutes was not a grant of injunctive relief, and therefore was not subject to immediate appeal under 28 U.S.C. Sec. 1292(a)(1). Plata v. Davis, #02-16161, 329 F.3d 1101 (9th Cir. 2003).

Public Protection

     Federal officers responsible for convicted drug felon in witness protection program were not liable for his alleged sexual abuse of a female at a residential juvenile facility where they helped him obtain employment, or for his alleged continued sexual abuse of her after he became licensed as a foster parent and obtained custody of her. Nothing in his past criminal record made it foreseeable that he would engage in such conduct, since he had no prior crimes of violence or sexual abuse. Lawrence v. United States, #01-36142, 340 F.3d 952 (9th Cir. 2003).

Religion

     Wiccan prisoner's lawsuit against federal Bureau of Prisons seeking to cast spells and curses in prison should not have been dismissed, federal appeals court rules. Further proceedings ordered to determine whether a prohibition on casting spells would "substantially burden" the prisoner's exercise of his religion, and whether the least restrictive means was used to accomplish the government's alleged compelling interest in doing so. O'Bryan v. Bureau of Prisons, #02-4012, 2003 U.S. App. Lexis 22958 (7th Cir.).

     Federal appeals court overturns trial court decision that federal statute imposing strict rule against imposing a substantial burden on prisoners' religious practices was an unconstitutional "establishment of religion" in case asserting prisoner's claim to a religious entitlement to kosher meals. Madison v. Riter, No. 03-6362/3, 2003 U.S. App. Lexis (4th Cir.).

Sexual Assault

     Update: Federal appeals court upholds ruling that drivers' license examiner's alleged conduct of forcing female inmate in work release program to have sex with him in exchange for special privileges, and under threat of being removed from the program, violated clearly established Eighth Amendment law. Smith v. Cochran, #01-5085, 339 F.3d 1205 (10th Cir. 2003).

     Correctional lieutenant who had sexual contact with female prisoner in federal facility held to have used "force" justifying the imposition of an enhanced criminal sentence despite not using a weapon, threatening or physically harming the victim, or inflicting pain on her. Court rules that the combination of the size disparity between the defendant lieutenant and the prisoner, the prisoner's circumstances in solitary confinement in a tiny cell with no other persons nearby, and being locked in her cell between his alleged attacks and repeatedly made to submit to him constituted "force" which placed her in fear. United States v. Denjen, 258 F. Supp. 2d 194 (E.D. N.Y. 2003).

Sexual Offender Programs

     Civilly committed sexual offenders can be placed in "therapeutic seclusion" either for purposes of therapy or to protect the offenders or others, but not as a means of inflicting extra punishment on them for their past sex crimes. Employees of state treatment facility were not entitled to qualified immunity on claims that they kept detainees in "seclusion" far longer than needed for reasons of therapy or security. West v. Schwebke, No. 02-4298, 333 F.3d 745 (7th Cir. 2003).

Therapeutic Programs

     Requirement that prisoner participate in stress and anger management classes as a condition of early release, enacted after prisoner was sentenced, was not an improper retroactive enhancement of his punishment. In Re Forbis, No. 73381-3, 74 P.3d 1189 (Wash. 2003).