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

Assault and Battery: Physical

     Jury award of $300,000 in compensatory and $1 million in punitive damages to arrestee and estate of second arrestee (who committed suicide months after arrest) on excessive force claims was not excessive. Diaz v. Vivoni, 301 F. Supp. 2d 92 (D. Puerto Rico 2003).

     Jury's verdict, finding both that motorist did not resist arrest after he stopped his car, and that officers who arrested him did not use excessive force during the arrest was not inconsistent and did not require a new trial on arrestee's claim, even though he was injured in the course of the arrest. Jury must have believed that officers' use of force was reasonable because of their belief that motorist was attempting to flee or resist arrest, based on prior pursuit which ranged over eleven miles. Brown v. City of McComb Mississippi Police Dept., #03-60034, 84 Fed. Appx. 404 (5th Cir. 2003).

Attorneys' Fees: For Plaintiff

     Federal appeals court finds that plaintiff who was awarded $87,000 in damages for alleged battery by two police officers at veterans' hospital was improperly also awarded $49,000 in attorneys' fees. While evidence showed, for purposes of award under Federal Tort Claims Act, that officers acted "wantonly," the U.S. government did not act "wantonly" in presenting a defense against the plaintiff's claims. Stive v. U.S., No. 03-2151, 2004 U.S. App. Lexis 8346 (7th Cir.).

Defenses: Eleventh Amendment Immunity

     California county sheriff acted on behalf of the state not the county, California Supreme Court rules, and therefore was entitled to absolute Eleventh Amendment immunity from liability on federal civil rights claims for damages. Plaintiffs could still pursue, however, their claims for unreasonable search and seizure under California state statute without a showing of any "intent to discriminate." Venegas v. County of Los Angeles, #S113301, 32 Cal. 4th 820; 87 P.3d 1 (Cal. 2004).

Defenses: Qualified Immunity

     Federal appeals court lacked jurisdiction to hear appeal of denial of qualified immunity to officers who shot man with a history of mental illness who they shot several times after responding to his 911 call. Trial court found that there were genuine contested issues of material fact, and appeals could not review that finding. Goffney v. Carr, #03-20072, 78 Fed. Appx. 974 (5th Cir. 2003).

Defenses: Statute of Limitations

EDITOR'S CASE ALERT:

     While the statute of limitations for an arrestee's false arrest Fourth Amendment claim would normally start running from the date of the arrest, a federal appeals court rules that if plaintiff was arrested and prosecuted solely on the basis of narcotics "planted" by the arresting officers, the statute would not start to run until the charges were dismissed. Wiley v. City of Chicago, #03-1490, 361 F.3d 994, rehearing denied, 2004 U.S. App. Lexis 7456 (7th Cir. 2004).

     Plaintiff in excessive force and false arrest lawsuit against officers was not entitled to an extension of the applicable statute of limitations based on court clerk's alleged failure to respond to his request about the status of his case, when the case was initially dismissed by the court because of the plaintiff's failure to pay the filing fee. Summary judgment was properly entered in favor of the defendants when the plaintiff re-filed the case over a year after its dismissal, which was six months after the statute of limitations expired. Campbell v. Kelly, #03-3170, 87 Fed. Appx. 234 (3d Cir. 2004).

     Statute of limitations barred motorist's civil rights claim arising out of alleged "high-risk" vehicle stop. Motorist's motion to extend time to file complaint was timely, but plaintiff failed to have summons to be served with order extending time issued until after limitations period had already expired. Spencer v. Town of Chapel Hill, 290 F. Supp. 2d 655 (M.D.N.C. 2003).

Disability Discrimination

EDITOR'S CASE ALERT:

     U.S. Supreme Court rules that states may be sued for damages under the Americans with Disabilities Act (ADA) for acts of disability discrimination which allegedly interfere with the constitutional right of access to the courts, and that such claims are not barred by Eleventh Amendment immunity. Court does not provide a clear answer about whether similar lawsuits against governmental employees for damages are proper in other circumstances of alleged disability discrimination in the providing of public services or programs. Tennessee v. Lane, #02-1667, 2004 U.S. Lexis 3386.

     City found to have intentionally discriminated against group home for recovering alcoholics and drug addicts by failing to reasonably accommodate it in relation to exempting it from certain zoning regulations in violation of Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12131(2), and in enforcing housing policies and fire code in a discriminatory manner against disabled residents of home. Tsombanidis v. West Haven Fire Dept., #02-7171(c), 352 F.3d 565 (2nd Cir. 2003).

False Arrest/Imprisonment: No Warrant

     Inoperable tag light on truck gave officer a basis for a traffic stop, and subsequent "belligerent and confrontational" behavior by motorist provided probable cause for a custodial arrest. Officer's use of Taser gun to accomplish the arrest was not excessive force under the circumstances. Draper v. Reynolds, #03-14745, 2004 U.S. App. Lexis 9498 (11th Cir.).

     Deputy sheriffs had adequate probable cause to arrest bail bondsmen for burglary and assault based on their observations and two-hour investigation of incident in which they allegedly forced their way into woman's home and slapped her in the course of revoking her bond. Anderson v. Cass County, Missouri, No. 03-2409, 2004 U.S. App. Lexis 8798 (8th Cir.).

     Officers had probable cause to arrest husband for violating court order of protection based on wife's statements, which they had no reason to doubt the veracity of. Coyle v. Coyle, 302 F. Supp. 2d 3 (E.D.N.Y. 2004).

     Probable cause was present for issuance of tickets charging individuals with disorderly conduct when they refused to leave a state park beach after entering through the water rather than a designated land-based entrance, as there was a rational basis for the regulation prohibiting entry from the water, and the disorderly conduct statute, which prohibited disobeying a lawful order of a police officer was not unconstitutionally vague. Federal appeals court declines to decide whether the issuance of the tickets constituted a Fourth Amendment "seizure." Dorman v. Castro, #02-9026, 347 F.3d 409 (2nd Cir. 2003), upholding 214 F. Supp. 2d 299 (E.D.N.Y. 2002).

     Officer was entitled to qualified immunity from false arrest lawsuit by hotel employee arrested for burglary of hotel rooms. The arrestee had worked at the hotel during the hours when the burglaries occurred, a credit card stolen from the rooms was used at a store near the employees home, and the arrestee owned a black down jacket similar to the one worn by the suspect in a store surveillance tape. Under the circumstances, reasonably competent officers could disagree as to whether there was probable cause to make an arrest. Colon v. Ludemann, 283 F. Supp. 2d 747 (D. Conn. 2003).

     Officers had probable cause for arresting driver of vehicle when he himself admitted driving on despite receiving multiple signals from officers in fully-marked police vehicle directing him to stop his car. This, combined with duration of pursuit, was sufficient to give officers grounds to believe that he willfully attempted to flee or elude the officers in violation of a city ordinance. Glass v. Abbo, 284 F. Supp. 2d 700 (E.D. Mich. 2003).

False Arrest/Imprisonment: Warrant

     Police officer could reasonably believe that there was probable cause to arrest students for complicity to commit rape based on issuance of arrest warrant which relied on the account of eyewitnesses and was judicially approved, in the absence of any evidence that either the officer or an attorney whose advice he relied upon knowingly made any material misstatements of fact in the application for the warrant. The fact that ultimately no charges were pursued against the students did not alter the result, as the issue was the existence of probable cause at the time of the arrest. Crockett v. Cumberland College, No. 01-5306, 316 F.3d 571 (6th Cir. 2003).

Firearms Related: Intentional Use

     Police officers could reasonably have believed that their safety was in danger even if the plaintiff's version of the incident were believed--i.e., that he turned and faced an officer with his gun in his hand down by his side. Officers were therefore entitled to qualified immunity for their shooting plaintiff several times. Cunningham v. Hamilton, #03-1639, 84 Fed. Appx. 357 (4th Cir. 2004).

     Officers acted reasonably in shooting man who allegedly failed to obey orders to put down an 8.5" knife which he had when they responded to his sister's call that he was "going crazy" and needed to "be committed somewhere." No evidence contradicted officers' testimony that the man charged at an officer with the knife, as sister's claim that her brother was trying to lay the knife on a picnic table after withdrawing it from a sheath was "pure speculation," given that she was not present at the time. Santana v. City of Hartford, 283 F. Supp. 2d 720 (D. Conn. 2003).

First Amendment

EDITOR'S CASE ALERT:

     Denial of a parade permit to Ku Klux Klan based on a New York statute prohibiting the wearing of masks upheld by federal appeals court. Overturning trial court opinion, appeals court finds no First Amendment violation, ruling that the mask that the Klan sought to wear in public conveyed no message "independent" of their robes and hood, and that the statute did not discriminate on the basis of viewpoint. Church of the American Knights of the Ku Klux Klan v. Kerik, #02-9418, 356 F.3d 197 (2nd Cir. 2004).

     County ordinance requiring permits for public demonstrations of five or more people violated the First Amendment by improperly targeting political expression. A provision in the ordinance requiring that groups indemnify the county in a manner "satisfactory" to the county attorney granted him "unconstitutional discretion" over permit decisions. Burk v. Augusta-Richmond County, No. 03-11756, 2004 U.S. App. Lexis 7261 (11th Cir.).

     Man arrested for failure to respond to complaint that he had not properly registered his dog could not pursue his claim that city officials retaliated against him for exercise of his First Amendment rights when he failed to provide any specifics or allege how the individual defendants participated in the supposed violation of his rights. Ledbetter v. City of Topeka, Kansas, No. 02-3202, 318 F.3d 1183 (10th Cir. 2003).

Freedom of Information

     Photos of body in a gruesome state following death were exempt from disclosure under the Freedom of Information Act's exception for "records or information compiled for law enforcement purposes," 5 U.S. Code §552(b)(7)(C), when their release would resulted in an "unwarranted invasion of personal privacy." National Archives v. Favish, 02-954, 124 S.Ct. 1570, 2004 U.S. Lexis 2546 (2004).

Governmental Liability: Policy/Custom

     Plaintiff failed to adequately allege that an official city policy or custom was behind the alleged disposal of his personal property, which was inside another person's car when it was impounded. City therefore could not be held liable for violation of his due process rights. Further, adequate state law remedies for retrieval of property had been available to plaintiff. Jones v. City of St. Louis, 285 F. Supp. 2d 1212 (E.D. Mo. 2003).

Malicious Prosecution

     In the absence of a showing that the defendants initiated a prosecution against the plaintiff, he could not pursue a malicious prosecution claim under either federal or New York law. Further, alleged violations of New York state criminal law, standing alone, could not be the basis for a federal civil rights action. Hansel v. Brazell, #02-9433, 85 Fed. Appx. 237 (2nd Cir. 2004).

Negligence: Vehicle Related

     Delaware Supreme Court rules that state statute prevents the state, as owner of a police emergency vehicle, from asserting sovereign immunity as a complete defense to a personal injury claim based on the alleged negligence of the vehicle's driver, but that any liability is limited, under state law, to the amount of liability insurance purchased. Pauley v. Reinoehl, No. 679,2002, 2003 Del. Lexis 625 (2004).

     Motorist whose vehicle was accidentally hit by car driven by sheriff's office lieutenant was properly awarded $26,000 in general damages based on evidence that the accident aggravated her prior cervical and lumbar injuries, and that plaintiff had difficulty sitting following incident. Appeals court also upholds award of $3,000 in damages to motorist's spouse for loss of consortium. Prudential Ins. Co. v. Gideon, No. 2002 CA 0532, 845 So. 2d 437 (La. App. 1st Cir. 2003). .

Off-Duty/Color of Law: Firearms Related

     Genuine factual issue as to whether off-duty police officer acted in self-defense in approaching with gun drawn, vehicle which had chased his, precluded summary judgment for officer in negligence and emotional distress claim brought by motorist concerning traffic-related altercation. Freeman v. Teague, #37,932-CA, 862 So. 2d 371 (La. App. 2 Cir. 2003). .

Procedural: Amendment of Complaint

     Arrestee who failed to assert federal civil rights claim in initial complaint or in response to motion for summary judgment, and who did not submit a proposed amended complaint in the form required by the federal rules of civil procedure could not pursue a federal Fourth Amendment claim. Spadafore v. Gardner, No. 01-2087, 330 F.3d 849 (6th Cir. 2003).

Property

     Louisiana court did not have authority to order release to juvenile arrestee's father of a four-wheeler seized as evidence of juvenile's alleged offense of negligently injuring another, because father was not a defendant in the underlying proceeding, now concluded, but a third party. State Ex Rel CC, No. 03-FA-762, 864 So. 2d 663 (La. App. 5 Cir. 2003).

Public Protection: Crime Victims

     Man beaten by four "hoodlums" in parking lot of city park while distributing Hare Krishna literature during a concert in city owned facility could not recover damages from either city or concert producer. Plaintiff's injuries were not the "foreseeable result" of any problem with concert security. Maheshwari v. City of New York, #54, 2004 N.Y. LEXIS 978.

Public Protection: Disturbed/Suicidal Persons

     Police officers did not violate the Fourth Amendment rights of mental patient they placed in wrist and ankle restraints at the request of mental health facility staff members. Patient's history of violent outbursts and mental conditions made the action reasonable. Officers were also entitled to qualified immunity for allegedly leaving patient in restraints when they left, after being told by staff that patient was about to be escorted to another facility. Lucero v. City of Albuquerque, No. 02-2280, 77 Fed Appx. 470 (10th Cir. 2003).

     State highway officials did not violate the constitutional rights of man who committed suicide by jumping off of Golden Gate Bridge, based on their failure to erect a suicide barrier there. The defendants' awareness of a history of suicides on the bridge and the opening of the bridge to pedestrians was insufficient to impose a Fourteenth Amendment due process duty on them to prevent the decedent's suicide, in the absence of any "special relationship" with him. Imrie v. Golden Gate Bridge, Highway and Transp., 282 F. Supp. 2d 1145 (N.D. Cal. 2003).

Search and Seizure: Home/Business

EDITOR'S CASE ALERT:

     Officers were not entitled to qualified immunity for going beyond the scope of a search warrant by searching a mother and her ten-year-old daughter while executing a warrant for narcotics at their home. Doe v. Groody, #02-4532, 361 F.3d 232 (3d Cir. 2004).

     "Consent" to enter a home, procured by an officer's false statement that police had a warrant, did not constitute "consent" at all. Arrest of suspect inside home without consent or a warrant following such an entry would be improper. Hadley v. Williams, #03-1530, 2004 U.S. App. Lexis 9446 (7th Cir.).

Search and Seizure: Vehicle

     Police officer could not be held liable for investigatory stop of car when a reasonable officer could have had articulable suspicion that the motorist had solicited a prostitute, even if that was not the officer's subjective motivation for making the stop. Federal appeals court overturns $17,500 award to motorist. Bolton v. Taylor, No. 01-2227, 2004 U.S. App. Lexis 8758 (1st Cir).

     FBI agent seeking bank robbery suspect acted reasonably in stopping a vehicle and mistakenly detaining its driver and passenger based on circumstances of his observations, including passenger's presence inside store at time when confidential informant was to have met with suspect there, and his wearing of a white baseball cap, along with order from superior to stop the vehicle. Agent was therefore entitled to qualified immunity from unlawful seizure claim. Schultz v. Braga, 290 F. Supp. 2d 637 (D. Md. 2003).

Wrongful Death

     Minor child of motorist mistakenly shot and killed by police officers following pursuit, based on incorrect belief that he was suspect wanted for stealing police pistol, could not intervene in a wrongful death claim brought under Virginia state law by the personal representative of the decedent's estate. Personal representative adequately represented minor's interest as a beneficiary of the estate. A mere difference of opinion concerning litigation tactics did not show that personal representative's actions were "inadequate" as would justify a right to intervene in the case for the minor beneficiary. Jones v. Prince George's County, Maryland, #02-7104, 348 F.3d 1014 (D.C. Cir. 2003).

Age Discrimination - Termination / Mandatory Retirement

     Federal appeals court dismisses a claim that Chicago's mandatory retirement program for police officers and firefighters was subterfuge to evade the purposes of the ADEA. Because the ADEA expressly permits retirement programs, the fact that city officials exercised this right for impure motives does not establish a subterfuge. Minch v. City of Chicago, 2004 U.S. App. Lexis 6927 (7th Cir. 2004).

Arbitration Procedures

     Massachusetts appellate court concludes that arbitrators do not need specific authority to modify disciplinary punishment, where the bargaining agreement requires "just cause." Boston Police Patrolmen's Association v. City of Boston, 805 N.E.2d 80 (2004).

Civil Service

     California Supreme Court depublishes an appellate court decision that upheld "post and bid" programs established under collective bargaining agreements, which apply to a limited number of appointments and promotions for civil service classifications. Calif. St. Personnel Board v. Calif. St. Empl. Assn. L-1000, 114 Cal.App.4th 11 (depub.) review granted, 2004 Cal. Lexis 1664 (2004).

     H.R 1588-230, which created the Dept. of Defense National Security Personnel System, changes the way the DoD will hire, pay, promote, discipline and fire its 320,000 civilian employees. The legislation effect members of more than 1,300 local bargaining units.

Disciplinary Evidence - Admissibility/In General

EDITOR'S CASE ALERT:

     Appeals court holds that a sergeant could testify against officers at a disciplinary hearing, based on what he was told by a citizen. Hearsay evidence is admissible if reliable, and was based on an investigative interview of an eyewitness. Broaden v. Dept. of Police, 866 So.2d 318 (La. App. 4th Cir. 2004).

Disciplinary Offenses - In General

     DC Bar joins Virginia in ruling that government attorneys ethically may engage in fraud, deceit, or misrepresentation if they reasonably believe that their official duties require covert action. D.C. Bar Legal Ethics Opinion 323, 42 (2054) G.E.R.R. (BNA) 357 (3/30/2004) ; Virginia State Bar Ethics Opinion 1765, 41 (2019) G.E.R.R. (BNA) 768 (6/13/03).

Disciplinary Punishment - In General

     Arbitrator reduces penalty from 3 days to 1 day for violating a rule prohibiting more than two marked cars parked at the same restaurant. A prior disciplinary incident occurred 5 years earlier and was not for related conduct. City of Elgin Police and PBA 54, 119 LA (BNA) 517 (Goldstein, 2003).

     Appeals court upholds termination of an officer for soliciting a prostitute. The evidence was based on surveillance and questioning of the woman. Weir v. Bratton, 772 N.Y.S.2d 38 (2004).

     West Virginia Supreme Court holds that the failure of management to consider the 15-year excellent work record of the chief investigator for the state medical examiner's office when it discharged him is sufficient reason to restore him to his original position or an equivalent one. The investigator established a prima facie case of reprisal and was made a scapegoat for the actions of several employees. Sloan v. Dept. of Health, 2004 W. Va. Lexis 6 (W.Va. 2004).

Discovery, Publicity and Media Rights

     Supreme Court finds that the release of gruesome body photos is not required under the FOIA's exception for "records or information compiled for law enforcement purposes" if their production "could reasonably be expected to constitute an unwarranted invasion of personal privacy." National Archives v. Favish, 124 S.Ct. 1570 (2004).

     Federal court rules that curious historians did not have legal standing to challenge Executive Order 13233, by which the heirs of a deceased or disabled former president can block public access to Presidential records. American Historical Assn. v. National Archives, 2004 U.S. Dist. Lexis 5137 (D.D.C. 2004).

Divorce Proceedings

     Four years after a police officer began participating in a DROP plan, he and his wife were divorced. A Texas appellate court has held that the wife was entitled to a percentage of the benefits credited to the husband's DROP account, including those credited post-divorce. Stavinoha v. Stavinoha, 126 S.W.3d 604 (Tex. App. 2004).

Free Speech

     Fifth Circuit reinstates a wrongful termination suit, filed by a police sergeant who claimed he was fired for responding to a news reporter's questions about a possible cover-up of the use of excessive force by another officer. The fact the sergeant also may have had an interest in vindicating himself did not take away from the "public" nature of the inquiry. Markos v. City of Atlanta, Texas, 2004 U.S. App. Lexis 5423 (5th Cir. 2004).

     Seventh Circuit finds that a former city worker was entitled to summary judgment; the record shows that he was fired in retaliation for exercising his right of free speech. Gazarkiewicz v. Town of Kingsford Heights, 359 F.3d 933 (7th Cir. 3004).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     After the Mississippi Highway Patrol loses a motion to dismiss a DoJ suit, filed on behalf of a cadet with diabetes who was fired, the agency agrees to pay damages and change its policies of accommodation. U.S.A. v. Miss. Dept. of Pub. Safety, 2004 U.S. Dist. Lexis 4633 (S.D. Miss. 2004); settlement announced, DoJ Press Rel. CR-04-196.

Hearing (Audio) Impairment

     A police officer's hearing loss, that was sustained over a long period of time while controlling crowds at parades and other events, was not the result of an accident. Hoehl v. Kelly, 772 N.Y.S.2d 65 (2004).

Inefficiency, Performance Standards, Negligence and Incompetence

EDITOR'S CASE ALERT:

     Federal appeals court declines to hold that an officer was forced off the job because he failed to uphold an unlawful ticket quota. The officer was not asked to violate the law, but merely to improve his traffic enforcement work. Hendriks v. City of Muscatine, 2004 U.S. App. Lexis 5088 (8th Cir. 2004).

Occupational Safety & Disease

     OSHA cites the U.S. Forest Service for five violations arising from the deaths of two firefighters in July 2003. Dept. of Labor v. U.S.D.A. Forest Service, #1177886150, 42 (2054) G.E.R.R. (BNA) 345 (OSHA 2004).

     California appeals court orders a law enforcement firing range to undertake an environmental study to justify its decision to close and remove a campus shooting range and to transfer certain classes to another range off campus. Assn. for a Cleaner Environment v. Yosemite Comm. College Dist., 116 Cal. App. 4th 629 (5th App. Dist. 2004).

Pay Disputes - Overtime Claims

     The Federal Labor Relations Authority has ruled held that federal criminal investigators whose lunch breaks were interrupted by supervisor work requests can count the response time as duty time. INS and AFGE L-3983, 59 FLRA No. 102 (FLRA 2004).

Pregnancy Policies and Discrimination

     Although state police management involuntarily placed pregnant troopers on light duty when they were unable to perform 131 tasks that no state police officer "was likely ever to perform," including roping a steer and lifting a 800-pound motorcycle to an upright position, the women were not entitled to recover damages against the medical personnel for "extreme and outrageous" conduct. Butner v. Dept. of State Police, 803 N.E.2d 722, 2004 Mass. App. Lexis180 (2004).

Race Discrimination - In General

     Federal court holds that the Delaware State Police used too high a cutoff score on a reading ability test, resulting in a high rejection rate for black applicants. DoJ will now seek remedial relief. U.S. v. Delaware State Police, 2004 U.S. Dist. Lexis 4560 (D. Del. 2004); DoJ Press Rel. CR-04-179.

Retirement Rights and Benefits

     Employers will be able to reduce or eliminate retired workers' health benefits after they qualify for Medicare, under a revised Rule of the Equal Employment Opportunity Commission. U.S. Equal Employment Opportunity Commission Notice of Proposed Rulemaking: Age Discrimination in Employment Act -- Retiree Health Benefits, 68 (134) Fed. Reg. 41542 (July 14, 2003).

     California appellate court concludes that a payment for accumulated sick leave is not part of a public employee's "final compensation" under Government Code 31461 and 31461.2 and should not be included when calculating retirement benefits. Salus v. San Diego Co. Emplees. Assn., 2004 Cal. App. Lexis 478 (4th Dist. 2004).

Sexual Harassment - In General

     Supervisory state polices officers were not entitled to qualified immunity in case alleging deliberate indifference toward a male trooper's sexual harassment of women, where they failed to adequately supervise the male officer, although they knew of his history of sexual misconduct. Maslow v. Evans, 2003 U.S. Dist Lexis 20316, 2003 WL 22594577 (E.D. Pa. 2003).

Sexual Harassment - Retaliation

     Appeals court allows a state trooper, who was disciplined after she complained about a hostile environment (because her boss was engaged in sexual favoritism toward his assistant) to proceed with a retaliation claim under the state civil rights law. Ritchie v. Dept. of State Police, 805 N.E.2d 54 (2004).

Stress Related Claims and Defenses

     NYC judge overturns decision to deny disability benefits to a former NYPD internal affairs officer that uncovered corruption and then (a) suffered harassment by a few anonymous coworkers, (b) was given undesirable assignments and (c) was subjected to the silent treatment by other officers. Matter of Jeffrey W. Baird v. Kelly, #101889/2003, N.Y. Law J. (N.Y. Co. Sup. Ct. 4/6/2004).

Transfers - Disciplinary or Punitive

     Pennsylvania appellate court affirms an arbitration award that a state trooper's involuntary transfer from a desired assignment was disciplinary and arbitrable. Penn. State Police v. Penn. State Troopers Assn., 840 A.2d 1059 (2004).

Union's Duty of Fair Representation

EDITOR'S CASE ALERT:

     Illinois appeals court upholds a Labor Board ruling ordering a police union to stop refusing to process grievances of officers who gather signatures to have another union designated as the bargaining agent. Metrop. Alliance of Police v. Illinois Lab. Rel. Bd., 803 N.E.2d 119 (2004).

     Connecticut federal court rules that a police union did not act arbitrarily or breach its duty of fair-representation in failing to respond to all steps in the grievance filed by a police detective who challenged his removal from the department's emergency response team for allegedly violating the code of conduct. Barton v. City of Bristol, 294 F.Supp.2d 184 (D. Conn. 2003).

     Pennsylvania federal court holds that a union did not act arbitrarily, discriminatorily, or in bad faith in breach of its fair-representation duty when it withdrew from arbitration proceedings in behalf of a civilian employee who was fired for possessing deadly weapon on the agency's premises, verbal assault, and engaging in conduct unbecoming, where union assisted the employee at all steps of the grievance procedure. Yon v. SEPTA, 2003 U.S. Dist. Lexis 20189 (E.D. Pa. 2003).

Untruthfulness & Resume Fraud

     An employee cannot use the FMLA (or other civil rights laws) to claim retaliatory termination when he was properly fired for falsifying his job-application, and there was no evidence that the employer's rule punishing untruthful applications is applied more harshly to employees who make legal claims against the company than against other employees who falsify their applicant forms. Aubuchon v. Knauf,359 F.3d 950, 2004 U.S. App. Lexis 4347 (7th Cir. 2004).

Access to Courts/Legal Info

     Private company develops "Touchsonic Legal Research Kiosks for Inmates" as a possible alternative for facilities without adequate space or budget for law libraries.

Criminal Conduct

     The Justice Department announced that Kevin Clark, a former Sergeant at the Dougherty County Jail in Albany, Georgia, was sentenced to six months imprisonment for obstructing justice in connection with a civil rights offense committed at the Dougherty County Jail.

     Former Wilson County Tennessee correctional officer pleads guilty to criminal charges related to an ongoing federal criminal civil rights investigation into allegations of excessive force and obstruction of justice at the Wilson County Jail in Lebanon, Tennessee.

     Former employee of a Tennessee state mental facility sentenced to 31 months in prison for repeatedly beating and physically abusing a patient with severe mental retardation.

Defenses: Eleventh Amendment

     Prisoner's negligence claims against state prison officials in their official capacity in federal court seeking money damages but not injunctive relief were barred by the Eleventh Amendment. The enactment of the Massachusetts Tort Claims Act, M.G.L.A. ch. 258 Sec. 1 et seq., did not waive the state's Eleventh Amendment immunity in federal court. Tort Claims Act's provisions barred negligence claims against correctional officials in their individual capacities. Caisse v. Dubois, No. 3-1176, 346 F.3d 313 (1st Cir. 2003).

Disability Discrimination: Prisoners

     The U.S. Department of Justice entered into a settlement agreement with the Maryland Department of Juvenile Services regarding the provision of services required by the Americans with Disabilities Act to juveniles with hearing disabilities.

DNA Tests

     Iowa statute requiring inmates convicted of certain offenses to submit a blood specimen for DNA profiling was intended to promote public safety, rather than to punish prisoners, and therefore was not an unconstitutional retroactive enhancement of their punishment. Schreiber v. State of Iowa, #01-1192, 66 N.W.2d 127 (Iowa 2003).

Expert Witnesses

     Hemophiliac detainee was not entitled, in his lawsuit against county sheriff and jailer for allegedly failing to provide him with timely medical care for a nosebleed, to an extension of time to designate his expert witness. Trial court therefore properly excluded the testimony of the plaintiff's expert, and granted Defendant's motion for summary judgment. Summey v. Barker, No. 632A02, 586 S.E.2d 247 (N.C. 2003).

First Amendment

     Prisoner's claim that he was charged with a disciplinary violation in retaliation for leading a religious group meeting which discussed whether the group should file a grievance against a prison employee adequately stated a claim for unlawful retaliation. Samuels v. Hammond, #03-30589, 78 Fed. Appx. 314 (5th Cir. 2003).

Frivolous Lawsuits

     Prisoner who had been involved in at least forty-seven prior state court civil and criminal appeals, all of them unsuccessful and all directly or indirectly related to his arrest, prosecution, conviction, or confinement for burglary, rape, and criminal deviate conduct, is enjoined against continuing to file meritless complaints. Court places detailed restrictions on his filing of additional complaints concerning the same subject matter. Sims v. Scopelitis, No. 50A03-0211-CV-399, 797 N.E.2d 348 (Ind. App. 2003).

Mail

EDITOR'S CASE ALERT:

     California prison ban on mail containing printed-out downloads from the Internet violated the First Amendment. Clement v. California Department of Corrections, #03-15006, 2004 U.S. App. Lexis 7576 (9th Cir.).

Medical Care

EDITOR'S CASE ALERT:

     Prison policy of requiring inmate to get a court order to obtain an elective abortion did not violate her constitutional rights. Victoria W. v. Larpenter, No. 02-30598, 2004 U.S. App. Lexis 8602 (5th Cir.).

     Far from showing that court ordered privatization of inmate medical care in Puerto Rico should be ended, correctional official's own evidence showed that consent decree relief was still necessary to remedy ongoing problems. Feliciano v. Serra, 300 F.Supp.2d 321 (D. Puerto Rico 2004).

     Jail nurse who took incoming prisoner's medical history was not liable for any damage allegedly resulting from 51-day delay in eye examination and resumption of medication which worsened his glaucoma when she had no further contact with him after intake process. Prisoner also failed to show that sheriff had any knowledge about his condition or was personally involved, in anyway, in the 51-day delay in scheduling his eye examination. Richardson v. Nassau County, 277 F. Supp. 2d 106 (E.D.N.Y. 2003).

Medical Care: Dental

     Prisoner's claim of a "great deal" of suffering as a result of a tooth extraction which did not "go well" was insufficient to support a lawsuit for deliberate indifference to his serious medical needs in violation of the Eighth Amendment. Prisoner's claim, at most, amounted to possible negligence or medical malpractice, which is insufficient for a constitutional claim. Majors v. Ridley-Turner, 277 F. Supp. 2d 916 (N.D. Ind. 2003).

Parole

     Parole Board official was entitled to absolute immunity in federal civil rights lawsuit over 65 day delay in scheduling parole revocation hearing (during which the plaintiff remained detained pending a hearing). Following the hearing, the hearing officer found no parole violation. Parole Board Chairman acted in a "quasi-judicial" capacity in determining when to schedule the hearing. Pate v. United States, 277 F. Supp. 2d 1 (D.D.C. 2003).

Prison & Jail Conditions: General

     Trial court failed to adequately show that an injunction was required to remedy fire safety issues at correctional facility. Hadix v. Johnson, No. 03-1334, 2004 U.S. App. Lexis 8889 (6th Cir. 2004).

Prison & Jail Construction and Closing Issues

     Governor of Ohio and director of state Department of Rehabilitation & Correction had authority, under state law, to make a decision to close a correctional facility in response to budgetary problems, and employees' union was not entitled to an injunction against the closure. State ex rel. AFSCME v. Taft, #1-03-56, 804 N.E.2d 88 (Ohio App. 3d Dist. 2004).

     Washington state statute requiring community notice and hearing before the building of a community based corrections facility only applied to residential facilities and not to community justice center which was non-residential and would provide supervision for community-supervised offenders. Citizens group's rights were not violated by denial of hearing. Citizens for Fair Share v. State of Washington Department of Corrections, No. 281-38-4-II, 72 P.3d 206 (Wash. App. 2003).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner's lawsuit concerning complaints about his medical treatment, when most of the complained of treatment took place after he filed his administrative grievance, was properly dismissed in its entirety for failure to exhaust available administrative remedies. Ross v. County of Bernalillo, No. 02-2337, 2004 U.S. App. Lexis 8362 (10th Cir. 2004).

Prison Litigation Similar State Statutes

     Louisiana state statute prohibiting prisoner from seeking damages for mental injury without a showing of physical injury only applies to claims arising after it was enacted. A retroactive application to the plaintiff prisoner's claim against sheriff for unsanitary conditions in disciplinary cells would violate due process, as the prisoner had a vested right to assert the claim not impacted by the statute. Bourgeois v. Wiley, #2002 CA1420, 849 So. 2d 632 (La. App. 2003).

Prison Rules/Regulations

     Establishment of new guidelines governing security classifications, work release, and family leave were not unconstitutional "ex post facto" laws increasing prisoners' punishment retroactively. They were not laws, but merely guidelines promulgated as an exercise of discretion and correctional officials had the authority to modify them. Watkins v. Secretary, Department of Public Safety and Correctional Services, No. 118, 831 A.2d 1079 (Md. 2003).

Prisoner Assault: By Inmates

     Correctional officers were entitled to qualified immunity for failing to protect prisoner from an attack by his cellmate when there was no evidence that anyone, including the plaintiff himself, believed that he was in danger from the cellmate until the attack actually occurred. Berry v. Sherman, No. 03-2828, 2004 U.S. App. Lexis 7927 (8th Cir. 2004).

     Mere fact that two inmates were of different races was insufficient to put corrections officer on notice that white inmate posed a threat of physical assault to black inmate in exercise yard. Officer, who had no knowledge of white inmate's alleged membership in racist gang or that anyone had threatened the black inmate, could not be held liable for alleged failure to protect him against assault. Jones v. Bernard, #02-1349, 77 Fed. Appx. 467 (10th Cir. 2003).

Prisoner Discipline

EDITOR'S CASE ALERT:

     Prisoner who had been convicted but not yet sentenced should be treated the same as a sentenced prisoner for purposes of whether he had a liberty interest in procedural due process before being punished for alleged violation of prison rules against possession of contraband, rather than being treated as a pre-trial detainee. Federal appeals court upholds dismissal of prisoner's due process lawsuit over his placement in a punitive cell for eight hours without first being given a hearing. Tilmon v. Prator, #03-31071, 2004 U.S. App. Lexis 8961 (5th Cir.).

     Prisoner's claim that several correctional officers physically assaulted him was not relevant to whether he was guilty of disobeying a direct order from an officer concerning keeping his hands in his pockets while being escorted from his cell. Prisoner therefore had no right to present such a "defense" at the disciplinary hearing. Claudio v. Selsky, 772 N.Y.S. 2d 424 (A.D. 3d Dept. 2004).

     Substantial evidence was present to support prisoner's disciplinary conviction for being disruptive during an interview, using obscene language towards an officer, and refusing to return to his cell when directed to do so. Branch v. Goord, 772 N.Y.S. 2d 426 (A.D. 3d Dept. 2004).

     Warden of parish jail did not have power, under Louisiana law, to classify a cell phone and charger as contraband. Statute defined what items were contraband in correction facilities in the state. State of Louisiana v. Miller, #2003-KK-0206, 857 So. 2d 423 (Louisiana 2003).

     California prisoner's violation of the rule against disrespect of prison staff was not a "serious" rule violation sufficient to support a loss of conduct credits, since it was not a "repeated pattern of administrative rule violation for the same offense." The prisoner's previous violations were of different offenses. In Re Smith, No. B166178, 5 Cal. Rptr. 3d 887 (Cal. App. 2d Dist 2003).

     Notice that prisoner received informing him that he was being charged with "rioting" and had been identified as an active participant in a dormitory riot on a particular date was sufficient to give the prisoner adequate notice of the charges against him for due process purposes. Subsequent finding that prisoner was guilty of the offense was adequately supported by some evidence, including statements of confidential informants and a conduct report identifying the prisoner as having participated in the disturbance. Hite v. Davis, #02-2818, 70 Fed. Appx. 352 (7th Cir. 2003).

Prisoner Injury/Death

     Federal prison officials were not liable for the death of a prisoner beaten to death by two fellow inmates with a fire extinguisher. Their decisions regarding where to house the prisoner and how to protect his safety fell within the "discretionary function" exception to the Federal Tort Claims Act, as those decisions were discretionary and "grounded in policy," since there was no mandatory course of conduct for officials to follow. Montez v. U.S., No. 02-6303, 359 F.3d 392 (6th Cir. 2004).

Prisoner Suicide

     Jailer who decided to finish feeding other inmates rather than immediately checking on pretrial detainee he observed lying nude and apparently sleeping in a "peculiar" position was entitled to qualified immunity from liability for prisoner's successful suicide. The detainee's use of his jail jumpsuit to strangle himself was not foreseeable and the cell was padded, lacking fixtures that could be used by a prisoner seeking to hang himself. Gray v. Tunica County, Mississippi, 279 F. Supp. 2d 789 (N.D. Miss. 2003).

Privacy

     Prisoners' claims against federal Bureau of Prisons challenging an alleged practice of retaining second copies of photos taken of prisoners and their visitors reinstated. Plaintiffs claimed that this practice violated their rights under the Privacy Act as well as constituting a misuse of Inmate Trust Fund money when the photos were paid for by the Fund. Maydak v. U.S., No. 02-5168, 2004 U.S. App. Lexis 7542 (D.C. Cir. 2004).

Religion

     Texas prisoners, members of the Church of Christ, did not show that Texas correctional officials violated their rights to religious freedom by providing a chaplain who they had doctrinal differences with. Prisoner who allegedly caused a disturbance and walkout by 50 prisoners at services by reading a statement denouncing the chaplain did not show that he was unlawfully transferred in retaliation for exercising his First Amendment rights. Freeman v. Texas Department of Criminal Justice, #03-10443, 2004 U.S. App. 8998 (5th Cir).

     Native American inmate was entitled to injunctive relief against grooming regulation requiring him to cut his hair short, to the extent of allowing him to grow a "kouplock," a two-inch square of hair at the base of the skull. Allowing a prisoner with sincere religious beliefs to grow such a limited area of hair "is not likely to result in the delayed capture of an inmate in the event of an escape," as it "cannot be manipulated to alter the appearance of an inmate's face or his profile." Hoevenaar v. Lazaroff, 276 F. Supp. 2d 811 (S.D. Ohio 2003).

Sexual Assault

     Overturning dismissal of criminal charges against corrections officer on three counts of institutional sexual assault under 18 Pa. C.S.A. Sec. 3124.2 (prohibiting sexual intercourse, deviate sexual intercourse or indecent conduct with an inmate by a corrections employee), Pennsylvania Supreme Court rejects arguments that the statute was void for vagueness, overbroad, or violated due process. Commonwealth v. Mayfield, 832 A.2d 418 (Pa. 2003).

Smoking

     It is clearly established, for purposes of qualified immunity, that a prison could violate the Eighth Amendment by deliberate indifference to a prisoner's exposure to unreasonable levels of environmental tobacco smoke (second-hand smoke). Genuine issue of fact as to whether a reasonable corrections officer could disagree as to whether officer's alleged smoking in law library violated prisoner's rights barred summary judgment for officer in prisoner's lawsuit. Gill v. Smith, 283 F. Supp. 2d 763 (N.D.N.Y. 2003).

     Prison officials were not entitled to dismissal of former prisoner's lawsuit concerning his allegedly unreasonable exposure to high levels of environmental tobacco smoke on the basis of the Fugitive Disentitlement Doctrine after he failed to return to Delaware for arrest for a probation violation under an order that he allegedly knew about. The doctrine is found not to apply as there was not a connection between the plaintiff's alleged fugitive status and his pending civil lawsuit. Atkinson v. Taylor, 277 F. Supp. 2d 382 (D. Del. 2003).

Strip Searches: Prisoners

     Federal appeals court upholds certification of class action lawsuits in two jailhouse strip search cases. Tardiff v. Knox County, No. 04-1065, 04-1165 (1st Cir.).

Voting

     Federal appeals court rejects Voting Rights Act challenge to New York's felon disenfranchisement statute, removing the right to vote from currently incarcerated felons and parolees, rejecting argument that it infringes on the right to vote on the basis of race. Three-judge panel, however, unanimously suggests resolution of the issue by the United States Supreme Court. Muntaqim v. Coombe, #01-7260, 2004 U.S. App. Lexis 8077 (2nd Cir).
     Editor's Note: Additionally, in Farrakhan v. Washington, No. 01-35032, 338 F.3d 1009 (9th Cir. 2003), rehearing en banc denied 359 F.3d 1116 (9th Cir. 2004), a panel of the Ninth Circuit held that a claim of vote denial based on Washington State's felon disenfranchisement scheme could be pursued under the Voting Rights Act.