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

Administrative Liability: Supervision
     In a lawsuit claiming that federal agents had violated the Fourth Amendment in the course of retrieving documents from a medical office responsive to a subpoena in a regulatory enforcement action, the agents' supervisors could not be held liable for damages when they had no personal involvement in the incidents in question. Van Eck v. Cimahosky, 329 F. Supp. 2d 265 (D. Conn. 2004).

Arrestee Suicide/Suicide By Cop
     Officers who shot and killed a man who demanded they kill him were not entitled to summary judgment on his estate's federal civil rights claim for excessive force when there was a factual dispute over whether he was armed with a knife at the time of the shooting, and whether he posed an immediate threat to them. Murphy v. Bitsoih, 320 F.Supp.2d 1174 (D.N.M. 2004).

Assault & Battery: Chemical
     Federal appeals court upholds $900,000 jury award to family of adult non-verbal autistic man who died after officers seeking to restrain him allegedly continued to use pepper spray and to lay on top of his body after he was handcuffed, hobbled, and laying on his stomach on the ground, no longer resisting. Continued use of such force at that point, the court rules, violated clearly established law, and jury's award was not excessive. Champion v. Outlook Nashville, Inc., No. 03-5068, 380 F.3d 893 (6th Cir. 2004).

Assault and Battery: Handcuffs & Restraints
     While an arrestee's claim that officers used excessive force against him after handcuffing him could move forward, based on genuine issues of fact as to what happened, and whether officers were entitled to qualified immunity from liability, the plaintiff failed to make any showing that an official policy or custom of the city or its police department led to his injuries. Claims for municipal liability, therefore, were properly rejected. Arrestee's testimony in a deposition that he "might" have been yelling and waving his arms, and making a fist at the officers as he approached them, and his admission that he reached for one officer's gun belt and touched it, warranted summary judgment for the defendant officers on his claims that they also used excessive force against him prior to handcuffing him. Ross v. City of Toppenish, No. 03-35234, 104 Fed. Appx. 26 (9th Cir. 2004).

Assault and Battery: Physical
     Federal appeals court overturns trial judge's grant of summary judgment on arrestee's claim that officer used excessive force against her in allegedly shoving her headfirst into a police vehicle, causing her to strike her head on the metal partition inside. Maxwell v. City of New York, #03-0245, 380 F.3d 106 (2nd Cir. 2004).

Defenses: Collateral Estoppel
     The rejection by a federal trial of the plaintiffs' federal civil rights claims of excessive force against a police officer, along with its dismissal, without prejudice, of their state claims, did not bar them from pursuing those state claims in a new lawsuit in West Virginia state court. West Virginia Supreme Court of Appeals rejects the argument that state law claims such as assault, battery, and reckless misconduct by officer who broke a man's leg during an encounter were barred from further consideration under the doctrine of collateral estoppel. While the federal claims rejected by the federal court arose out of the same incident, different legal standards applied to the federal and state claims, so the issues involved in the state claims had not previously been decided on the merits. Neiswonger v. Hennessey, No. 31274, 601 S.E.2d 69 (W. Va. 2004).

Defenses: Governmental Immunity
     Officer who did not act with malice towards arrestee who had violated laws against having alcohol on water district property was entitled to governmental immunity under the Mississippi Tort Claims Act, A.M.C. Sec. 11-46-7(2) for alleged injuries arrestee suffered from the force the officer used when the arrestee allegedly resisted arrest. Pearl River Valley Water Supply District v. Bridges, No. 2002-CA-01425-COA, 878 So.2d 1013 (Miss. App. 2004).

Defenses: Indemnification
     County did not act arbitrarily or capriciously in terminating the coverage of a sheriff's department employee under an ordinance concerning defense and indemnification in lawsuits against employees acting in their official capacity when the employee allegedly failed to fully cooperate with the county attorney and deliberately withheld information from the attorney in replying to interrogatories concerning his prior work history. Baker v. Gwinnett County, No. A04A0048, 600 S.E.2d 819 (Ga. App. 2004).

Defenses: Qualified Immunity

Editor's Case Alert:
     U.S. Supreme Court to decide whether officers were entitled to qualified immunity for arresting a motorist for tape recording a traffic stop without consent, which was not a crime under applicable state law, based on the existence of arguable probable cause to arrest him for crimes "not closely related" to the charged offense. Alford v. Haner, #01-35141, 333 F.3d 972 (9th Cir. 2003). The U.S. Supreme Court granted review in Devenpeck v. Alford, #03-710, 124 S. Ct. 2014 (2004).

Defenses: Release Agreements
     Release agreement that arrestee signed in connection with a negotiated plea on pending criminal charges was not enforceable when the available evidence failed to show that the arrestee voluntarily entered into an agreement to waive his right to sue a police officer and the prosecutor. The arrestee was not advised at either the arraignment or the plea hearing of his right to counsel concerning the entry of the plea. Jimenez v. Brunner, 328 F. Supp. 2d 1208 (D. Utah 2004).

Domestic Violence
     Woman's estate could pursue a negligence claim under Connecticut law against town and police officers for allegedly failing to protect her and her unborn fetus from being fatally shot by her estranged boyfriend, who was the father. Court rules that the defendants did not have tort immunity because the decedents were identifiable persons facing imminent harm. It was alleged that the officers knew of two prior assaults and a kidnapping that the boyfriend had perpetrated against the woman, and that the woman had expressed fear for her life. Florence v. Town of Plainfield, No. CV-03 00695808, 849 A.2d 7 (Conn. Super. 2004).

False Arrest/Imprisonment: No Warrant
     Police officer could rely on store detective's statement that he had observed a woman and her sons take two jackets from the premises without paying, despite her display of a "layaway" receipt purporting to show her purchase of these or similar items thirteen days earlier. Summary judgment was properly granted to defendants in arrestee's civil rights lawsuit. Acosta v. Ames Dep't Stores, Inc., No. 04-1016, 2004 U.S. App. Lexis 19823 (1st Cir. 2004).
     Officers were not entitled to qualified immunity on motorist's claim that she was arrested for alcohol or drug induced driving without evidence of that, after she was involved in a collision with an off-duty officer's car. The motorist's version of the incident, if believed, supported her assertion that the officers fabricated smelling an odor of cannabis to manufacture probable cause for an arrest. Kingsland v. City of Miami, No. 03-13331, 2004 U.S. App. Lexis 18409 (11th Cir.).
     Maine police officer had arguable probable cause to arrest a homeowner on a drug offense when he had information presenting a reasonable likelihood that the arrestee had furnished a prescription drug to his teenage son, who then sold it to a confidential informant. Officer was therefore entitled to qualified immunity from liability for false arrest. Cox v. Maine State Police, 324 F. Supp. 2d 128 (D. Maine).

False Arrest/Imprisonment: Warrant
     Man arrested under a valid warrant in a case of mistaken identity did not show that officers violated his constitutional rights in making the arrest by failing to attempt to compare the photo of the suspect sought with his appearance. Since the officers had the correct address, and the arrestee himself "acquiesced" in the arrest, this did not show anything other than, at most, negligence on the part of the officers, which was insufficient for a federal civil rights claim. Jordan v. Fournier, 324 F. Supp. 2d 242 (D. Me. 2004).
     Judge's finding that arrestee was guilty on charges of delaying a police officer in the performance of his duties, which he had been arrested for under a warrant, showed that there was probable cause for the arrest, even though the arrestee was not formally sentenced or "convicted" of the charges, since the judge entered a "prayer for judgment continued" under North Carolina law. Such a ruling, while it had the effect of not sentencing the arrestee for the offense, did not establish his innocence of it. Elkins v. Broome, 328 F. Supp. 2d 596 (M.D.N.C. 2004).

False Arrest/Imprisonment: Unlawful Detention

Editor's Case Alert:
     City's procedures for obtaining a post-arrest probable cause determination in warrantless arrests did not violate constitutional requirements, despite not requiring a personal appearance of the arrestee before the magistrate and the use of a pre-printed form for the officer to fill out and submit along with the arrest report and related records. Jones v. City of Santa Monica, No. 03-55211 2004 U.S. App. Lexis 19046 (9th Cir. September 10, 2004)

Federal Tort Claims Act
     Activities of the U.S. Marshals Service while attempting to provide protection to a federal judge and his home involved the exercise of judgment, bringing their actions within the discretionary function exception to liability under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq. This entitled the U.S. government to dismissal of a claim under the Act by neighboring homeowners seeking money damages for alleged trespass, nuisance, and invasion of privacy committed by the Marshals in the course of carrying out their protective function. The judge was given 24-hour-a-day protection at his residence because of threats to him resulting from his handling of terrorism related court cases. Callahan v. United States, 329 F. Supp. 2d 404 (S.D.N.Y. 2004).

Firearms Related: Intentional Use
     Police officer acted in an objectively reasonable manner by using deadly force against the occupants of a truck that was being driven towards him at a high rate of speed while he stood a few feet away. Herman v. City of Shannon, No. 04-60027, 104 Fed. Appx. 398 (5th Cir. 2004).

Firearms Related: Licenses and Regulations
     Sheriff's office employees acting in good faith were immune, under Washington state statute, from liability for any alleged errors in connection with preparing or transmitting information in the process of determining an applicants eligibility to receive or possess a firearm, or eligibility for a concealed pistol license. Applicant who was at first denied purchase of a pistol on the basis of incorrect information could not, therefore, collect damages. Deschamps v. Mason County Sheriff's Office, No. 30432-5-II, 96 P.3d 413 (Wash. App. Division 2 2004).

First Amendment
     City's action of issuing a convicted sex offender a letter permanently banning him from all city parks did not violate his First Amendment rights or his right to due process of law. The action was not aimed at punishing the offender for his thoughts, a federal appeals court ruled, but rather was aimed at preventing his conduct of going to parks to search for children to satisfy deviate desires, and any impact on his First Amendment right to freedom of thought was incidental. The court also found that the city's action was the narrowest reasonable means of promoting a compelling interest of protecting children from him when he admitted that he was a "sexual addict" and would always have "inappropriate urges" towards children. Doe v. City of Lafayette, Indiana, No. 01-3624, 377 F.3d 757 (7th Cir. 2004).

Freedom of Information
     New York high court orders further proceedings on city's denial of freedom of information law requests for police officer "use of force" forms when the city admitted, during oral argument, that it did not use the type of form sought, but did have incident and arrest reports which might include references to the use of force, which it would be willing to disclose after the removal of certain information. The trial court was instructed to provide direction concerning which documents should be produced and reviewed by the court or a referee before disclosure to the plaintiff, a civil liberties organization. N.Y. Civil Liberties Union v. City of Schenectady, 2 N.Y.2d 657, 814 N.E.2d 437 (N.Y. 2004).

Governmental Liability: Policy/Custom
     Woman arrested for alleged violation of a domestic violence protective order that she claimed she had not yet been served with could not pursue federal civil rights claim against town when there was no assertion that any official municipal policy had caused the arrest. The mere fact that the magistrate who issued the warrant for her arrest, and the sheriff who supervised the office which allegedly failed to serve her with the protective order were both municipal employees did not alter the result. Cole v. Summey, 329 F. Supp. 2d 391 (M.D.N.C. 2004).
     An arrestee's mere conclusory statement in his federal civil rights complaint that a county was somehow involved in the alleged unlawful use of a trespass form (forbidding the arrestee to enter a Home Depot hardware store) by the local prosecutor and village police officers to prosecute him was insufficient to impose municipal liability on the county. No official policy or custom by the county was shown, and a municipality and its agencies cannot be held liable under federal civil rights statutes merely for the "isolated" allegedly unconstitutional actions of its employees. Vineyard v. County of Nassau, 329 F. Supp. 2d 364 (E.D.N.Y. 2004).

Negligence: Vehicle Related
     Postal inspector's undercover vehicle qualified as a "police vehicle" under a New York statute granting qualified exemptions from traffic laws when engaged in emergency operations. The defendant inspector did not act in "reckless disregard" of others' safety in following a person under surveillance through a red light. The U.S. government was not, therefore, liable under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq., for injuries to another motorist in an ensuing traffic accident. Hodder v. United States, 328 F. Supp. 335 (S.D.N.Y. 2004).
     A genuine issue of fact as to whether the driver of an emergency vehicle that proceeded through a red light while responding to a fire should have seen the motorist's vehicle that he collided with precluded summary judgment for the defendant city in a personal injury lawsuit by the motorist. While Florida law allowed the emergency vehicle to proceed through a red light, and the driver had his lights and sirens engaged, he was not relieved, under the statute, from the duty to "drive with due regard for the safety of all persons" or from liability for conduct in "reckless disregard" of such safety. Evans v. City of Miramar, No. 4D03-3895, 879 So.2d 684 (Fla. App. 4th Dist. 2004).

Procedural: Discovery
     Plaintiff in federal civil rights lawsuit against officers and city claiming summons was improperly issued to him in retaliation for his exercise of First Amendment rights and because of racial animus was not entitled to disclosure of a defendant officer's home address for the purpose of asking whether neighbors had overheard officer make racist remarks. Trial court also rejects plaintiff's arguments that plaintiff was entitled to disclosure of officer's home address for the purpose of aiding his investigation of her ability to pay punitive damages. The officer's interests in privacy and safety outweighed the plaintiff's "extremely weak" interest in obtaining her home address, the court rules. Collens v. City of New York, 222 F.R.D. 249 (S.D.N.Y. 2004).
     Plaintiffs who sued a municipality for alleged civil rights violations in connection with at least two instances of trespass upon their premises were not entitled to pursue their lawsuit if they persisted in asserting their privilege against self-incrimination in response to discovery questions concerning the use and occupancy of the premises and whether they or others lived there. While they had a constitutional right under the Fifth Amendment not to answer such questions, the failure to provide such information would prevent the municipality from properly defending itself in the lawsuit, and the privilege against self-incrimination, which is intended to be used solely as a "shield" cannot be used as a "sword to harass a defendant and to effectively thwart any attempt" by a defendant at a pretrial discovery proceeding to obtain information relevant to the cause of action alleged and possible defenses to it. Nasca v. Town of Brookhaven, 781 N.Y.S.2d 137 (A.D. 2nd Dept. 2004).

Public Protection: Crime Victims

Editor's Case Alert:

     Victim of alleged rape by four university football team members could not pursue claims against law enforcement for violation of her civil rights on the basis of a purported failure to perform a proper investigation. Jennings v. City of Stillwater, No. 03-6206, 2004 U.S. App. Lexis 19274 (10th Cir. September 15, 2004)

Public Protection: Informants

Editor's Case Alert:
     FBI agent could not be held liable for allegedly negligently revealing the identity of an informant to persons who might threaten him, when there was no showing of deliberate indifference towards the informant's safety. Coyne v. Cronin, No. 03-2357, 2004 U.S. App. Lexis 21178 (1st Cir.).

Public Protection: Rescue Situations
     Police officers who allegedly failed to summon ambulance for an hour and a half after responding to 911 call reporting man suffering from gunshot wounds were not entitled to summary judgment in wrongful death lawsuit. Decedent's estate claimed that officers had also told a neighbor who wanted to assist the injured man to go away. While officers may not have had a duty to respond to the call, once they voluntarily undertook to take charge of the scene, they had a duty not to harm the injured man. Torres v. City of Chicago, No. 1-03-0357, 2004 Ill. App. Lexis 1115 (1st Dist.).

Racial Discrimination
     Officer's action in stopping a vehicle driven by an African-American motorist did not constitute racial discrimination when he made the decision to do so based on a problem with the license number of the car, which was for another vehicle, and suspicion that it was the car used in an earlier crime, prior to seeing the motorist. Wright v. Santopietro, 325 F. Supp. 2d 79 (D. Conn. 2003).

Search and Seizure: Home/Business
     Officers who allegedly compelled warrantless entry into a woman's home by threatening to arrest her and put her baby in foster care were not entitled to qualified immunity. Warrantless entry was not justified by the fact that a parolee, the subject of the search, had previously lived there, when he was in jail at the time, and the search was based on "stale" information. Additionally, no reasonable officer could have believed that pointing a gun at the five week-old baby during a search of his room was reasonable under the circumstances. Motley v. Parks, No. 02-56648 2004 U.S. App. Lexis 19581 (9th Cir.).
     The factual question of whether officers reasonably believed that their warrantless entry into a home was necessary for the safety of the residents in light of the behavior of a man with "mental problems" inside was for the jury to decide, so that a trial court properly denied the plaintiffs summary judgment on their federal civil rights lawsuit against the officers. The officers contended that their warrantless entry was justified by the man's extreme agitation at the door to the residence, his statement that he would "like to kill" the police, and the presence of his elderly parents inside, as well as their apparent inability to calm their son down. Deloreto v. Karengekis, No. 03-7709, 104 Fed. Appx. 765 (2nd Cir. 2004).

Search and Seizure: Search Warrants
     Search warrant for a residence which authorized a search of "all persons" present for drugs was not adequately supported by detailed information to support probable cause to believe that all occupants of the premises were involved in criminal activity. Officers who carried out the search pursuant to the warrant, and who strip-searched or pat-searched four adults and two minors in the home, were entitled to qualified immunity because the law on the issue was not clearly established at the time of the search. Owens Ex Rel. Owens v. Lott, No. 03-1194, 372 F.3d 267 (4th Cir. 2004).

Age Discrimination - Entry

     A 74-year-old Philadelphia police recruit, who was removed from the academy after failing firearms and running tests, loses his age discrimination lawsuit. Brophy v. City of Philadelphia Police Dept., 2004 U.S. Dist. Lexis 14665 (E.D. Pa. 2004).

Arbitration Awards - Right of Courts to Interfere

     Michigan appellate court refuses to set aside an arbitrator's decision to reduce the punishment from demotion from corporal to a one-day suspension. The officer did not follow agency policy relating to a DUI traffic stop. Clay Twp. v. Montville, 2004 Mich. App. Lexis 1635 (2004).

Bargaining Unit Determinations

     The Florida Public Employees Relations Cmsn. has determined that a bargaining unit of civilian communications officers and sworn law enforcement officers was appropriate for bargaining purposes. Palm Beach Co. v. Town of Jupiter, 2004 FPER (LRP) Lexis 183 (Fla. PERC 2004).

Bill of Rights Laws

     California appellate court holds that the state's Public Safety Officers Procedural Bill of Rights Act does not apply to a criminal investigation conducted by an outside agency. Moreover, where a police officer avoids the severe penalty of dismissal by entering into a settlement agreement and accepts lesser discipline, he cannot seek a remedy under the Public Safety Officers Procedural Bill of Rights Act to avoid that discipline. Alhambra POA v. City of Alhambra, 113 Cal. App. 4th 1413; revi. den. 2004 Cal. Lexis 2852 (2004).

Collective Bargaining - Duty to Bargain

     Massachusetts Labor Relations Cmsn. decides that a city is required to bargain over changes to its "Paid detail system" of selecting outside employment assignments. City of Boston and Boston Police Patrolmen's Assn, No. MUP-1758 (MLRC 2004).

     Illinois Labor Relations Board agrees with a police union that a change in parking fees for employees is a mandatory subject of bargaining, because it affected the terms and conditions of employment and did not involve matters of inherent managerial authority. Illinois FOP v. Bd. of Tr., Univ. of Illinois, 2004 PERI (LRP) Lexis 68 (Ill. Lab. Bd. 2004).

     California Court of Appeal holds that, to remedy a short-term staffing shortage, a city can hire retired police officers, and does not have to bargain that issue with the union. Sacramento POA v. City of Sacramento, #C042493, 117 Cal. App. 4th 1289 (3rd App. Dist. 2004).

     Arbitrator holds that a transit authority violated the bargaining agreement when it unilaterally changed the workweek of certain employees from four 10-hour days to five eight-hour days. Bi-State Devel. Agency and ATU L-788, 119 LA (BNA) 1588 (Pratte, 2004).

Disciplinary Hearings

     New Jersey appellate court invalidates a process where a senior ranking state police officer sits as a disciplinary hearing examiner. Because of the danger of "command influence in a paramilitary organization," the state's administrative procedure law must be followed, and cases heard by an independent administrative law judge. New Jersey State Police v. Maguire, 847 A.2d 614 (N.J. App. Div. 2004).

Disciplinary Interviews - Weingarten Rights

     New York's PERB holds that a union employee is entitled to have his Weingarten representative present during a criminal interview. Although the conduct of criminal investigations of officers is not a mandatory topic for collective bargaining, the representative is there to assist an employee, not to negotiate with the employer. Rochester Police Locust Club and City of Rochester, 2004 NYPER (LRP) Lexis 80 (NY PERB 2004).

Disciplinary Offenses

     Mississippi sheriff's deputy, who was fired because he was a "liability risk" loses a court challenge to his termination. He was terminated because he precipitated two lawsuits and the insurance carrier threatened not to renew the county's professional liability policy. Burleson v. Hancock Co. Sheriff's Dept., 872 So.2d 43; cert. den. 2004 Miss. Lexis 467 (2004).

Disciplinary Procedures

     New Jersey appellate court holds in two cases that disciplinary charges should not be dismissed because the hearings were not held within the 30-day period provided by law. Where the officers were not prejudiced and the delay is not a contrivance, neither the bargaining agreement, state statutes, nor case law compel the dismissal of the charges. Goodman v. Dept. of Corrections, 844 A.2d 543 (NJ App. Div. 2004); and Arb. FOP L-97 and Gloucester Co. Sheriff's Office, 835 A.2d 687 (N.J. Super. 2003).

Disciplinary Surveillance

Editor's Case Alert:

     Oregon's Supreme Court holds that a public employer can secretly install a device that monitors and reports the location of a government vehicle used by a public employee. In this case, a firefighter ultimately was convicted of First Degree Arson. State v. Meredith, 96 P.3d 342 (2004).

Discovery, Publicity and Media Rights

Editor's Case Alert:

     Federal court allows a plaintiff to subpoena an officer's medical and claims history, notwithstanding confidentiality privileges and privacy laws. The plaintiff claimed the officer shot him in the back because he was physically unable to chase him due to physical impairments. Hutton v. City of Martinez, 219 F.R.D. 164 (N.D. Cal. 2003).

E-Mail/Internet - Legal Issues

     Texas Attorney General issues an official opinion that neither the federal E-Sign Act nor the Uniform Electronic Transactions Act requires a public official to accept documents containing a printed copy of an electronic signature or notary seal. Neither act imposes a duty upon public officials to accept electronic signatures. Texas Attorney Gen. Opin. GA-0228 (2004).

Family and Medical Leave

     Sixth Circuit holds that for purposes of the hours-of-service eligibility requirement under the FMLA, an arbitrator's restoration award may include the time that an employee would have worked, but for the employer's wrongful termination. Ricco v. Potter, 377 F.3d 599 (6th Cir. 2004).

Firearms - Restrictions on Wearing

     New Jersey Public Employment Relations Cmsn. restrains arbitration over the issue of whether an officer, who was sued after a shooting, should be re-armed. The issue is not arbitrable because an award could limit a city's policymaking power to determine the conditions it allows officers to be armed. City of Newark v. F.O.P. Lodge 12, 2003 NJPER (LRP) Lexis 176 (N.J. PERC 2003; rptd. 2004).

First Amendment Related

     Appellate court affirms the dismissal of a police sergeant's First Amendment suit for retaliation, based on the his testimony at a public hearing, because the content of testimony was not a matter of public concern. Kirby v. City of Elizabeth City, 2004 U.S. App. Lexis 17877 (4th Cir. 2004).

     New Jersey appellate court affirms an order by the state's Public Employment Relations Cmsn. directing the sheriff to cease and desist from reassigning and suspending a deputy in retaliation for his questioning negotiations unit members about drug testing. The disciplinary actions taken constituted an unfair practice because of the sheriff's hostility his inquiries. Middlesex Co. Sheriff v. Eckel, 2004 NJPER (LRP) Lexis 84 (N.J. App.Div. 2004).

     Eighth Circuit finds that having a prayer session at a mandatory training program was a decisive endorsement of religion, and violated the First Amendment rights of a public employee who objected to the prayers. The appeals panel directed the trial court to widen the injunctive relief to include training sessions of other public employees, even if the plaintiff was not present. "...we believe that it is the government's endorsement of a particular religious message that constitutes the constitutional violation here, not the effects of official prayers on [the plaintiff's] psyche. Warnock v. Archer, 2004 U.S. App. Lexis 17938 (8th Cir. 2004).

Funding Disputes

     Ohio appellate court holds that a sheriff's statutory duty to preserve the peace and enforce the law does not require the county commission to adequately fund a road patrol division. Any funding determination was solely within the commissioners' discretion and that the burden falls on the sheriff to establish that appropriations are unreasonable, even as to the sheriff's mandatory duties under the statutes. Geauga County Bd. of Cmsnrs. v. Geauga Co. Sheriff, 2003 WL 23100323, 2003 Ohio App. Lexis 6508 (Ohio App. 2003; rptd. 2004).

Handicap Discrimination - Accommodation

     Third Circuit holds that a police sergeant, who for psychological reasons cannot be entrusted with a firearm, is entitled to a reasonable accommodation with a position that does not require him to be armed. The District Court failed to consider whether the plaintiff's inability to carry a firearm would prevent him from performing work in a "class of jobs." Williams v. Philadelphia Housing Auth. Police Dept., 380 F.3d 751 (3rd Cir. 2004).

     MSPB holds that under the Rehabilitation Act, a public employer is entitled to request additional medical information from a disabled employee and his or her physician, to determine what accommodation is necessary. If that information is not forthcoming, separation for medical reasons is proper. Madison v. Rumsfeld, 2004 EEOPUB Lexis 4377 (EEOC 2004).

Holiday and Premium Pay

     FLRA decides that an employee who was otherwise entitled to premium pay for working holidays and Sundays was not entitled to supplemental compensation when he attended a conference in his capacity as a labor union official. Engaging in representational activities does not constitute the "work" of the agency, and was not compensable under federal premium pay regulations. FAA and NATCA, 2004 FLRA Lexis 89, 60 FLRA No. 7 (2004).

Jurisdictional Disputes & Work Erosion

     New York Public Employment Relations Board holds that a sheriff had no duty to bargain with the correctional officers' union over the transfer of some duties to parttime transport officers who were not part of the bargaining unit. Corrections Officers PBA and Rockland Co. Sheriff, 2004 NYPER (LRP) Lexis 127 (NY PERB ALJ 2004).

Last Chance Agreements

     While a California city entered into two last chance agreements for first-time violations of the fire department's alcohol and drug use policy, they were specifically labeled as non precedent setting, and future disciplinary action was unaffected by the agreements. San Francisco Firefighters Union v. City and County of San Francisco, 2004 PERC (LRP) Lexis 70, 28 PERC 120 (Cal. PERB 2004).

Past Practices Clauses

New York Public Employment Relations Board concludes that take-home police cars are an economic benefit, which cannot be removed absent bargaining -- but only when it is a recognized past practice. The union failed to demonstrate the existence of a past practice. Superior Officers' Assn. and Co. of Nassau, 2004 NYPER (LRP) Lexis 79 (NY PERB 2004).

Psychological Exams

     Federal court in Illinois affirms the right of an employer to administer the MMPI to applicants and promotional candidates, if the "vocational" scoring protocol is used, rather than the "clinical" protocol. The former identifies personality traits; the latter reveals psychological impairments.. Karraker v. Rent-A-Center, 316 F.Supp.2d 675 (C.D. Ill. 2004).

     Appeals court affirms the firing of a special agent who suffered from psychological disorders. The fact that, in an unrelated decision, her disability pension application was denied because her condition did not affect her ability to perform her duties, was of no consequence. The termination was based on substantial evidence that she was unable to perform adequately as an investigator and could not be reasonably accommodated by the Justice Dept. Bullock v. INS, 99 Fed. Appx. 890 (Fed. Cir. 2004).

Seniority

     Productivity vs. Seniority: State labor commission says that while shift assignments are bargainable and arbitrable, public employers have a non-negotiable prerogative to match employees to specific jobs for quality purposes. Middletown Twp. and P.B.A. L-124, 2004 NJPER (LRP) Lexis 50, 30 NJPER 55 (NJ PERC 2004).

     Management did not violate the bargaining agreement when it involuntarily transferred an officer, with the most seniority in the north sector, to the south sector. The CBA provided that seniority should be considered only for unusual shift assignments. City of Laredo and Laredo POA, 119 LA (BNA) 1651 (Moore, 2004).

Sexual Harassment

     Because the State Police had a written anti-harassment policy and took prompt remedial action after a dispatcher alleged that a sergeant had touched her, the agency was not liable. McCurdy v. Arkansas State Police, 375 F.3d 762 (8th Cir. 2004).

Transfers - Non Disciplinary

     Seventh Circuit says that "a transfer does not become an adverse employment action solely because the employee subjectively prefers one position over another." The plaintiff's transfer out of the detective division was at the same pay and benefits. McKenzie v. Milwaukee Co., 2004 U.S. App. Lexis 17866 (7th Cir.2004).

Uniforms, Clothing and Equipment

Editor's Case Alert:

     Massachusetts rules that, absent an actual showing of harm, management cannot prohibit uniformed public employees from wearing a union pin. Town of Oxford and Mass. Coalition of Police, L-173 AFL-CIO, MUP-2659 (Mass. LRC 2004).

     A New York ruling holds that off-duty troopers can wear police union pins when they attend a criminal trial, while off-duty and in civilian clothes. PBA NY State Troopers and Div. of State Police, 2004 NYPER (LRP) Lexis 111 (NY PERB 2004).

Whistleblower Requirements and Protection

     The filing of in internal grievance was not a "report" within the meaning of the Texas Whistleblower Act, which prohibits taking adverse personnel action against a public employee who in good faith reports a violation of law. A divided appellate court rejected the appeal of a sergeant's demotion. County of Bexar v. Steward, 139 S.W.3d 354 (4th App. Dist. 2004).

Access to Courts/Legal Info

     Mississippi Supreme Court rules that "mailbox rule," regarding court papers as having been filed as of the date they are mailed by an inmate, rather than when received by the court clerk, applies to filings in a civil case seeking review of an administrative decision. The court vacated and remanded the dismissal of a lawsuit by the plaintiff prisoner challenging the procedures used to put him in solitary confinement as a violation of due process. Easley v. Roach, No. 2003-CP-01557-SCT, 879 So. 2d 1041 (Miss. 2004).

Defenses: Notice of Claim

     In a lawsuit claiming that a prisoner died as a result of prison officials' failure to diagnose and treat his medical condition of a hernia of the small and large bowel, the prisoner's injury was not the death but rather the worsening of his condition. Therefore, since notice of the claim was not provided to the District of Columbia until six months and one day after the date that his conditioned worsened, it did not comply with a statute requiring notice within six months, so that the lawsuit was properly dismissed. Brown v. District of Columbia, No. 02-CV-756, 853 A.2d 733 (D.C. 2004).

Disability Discrimination

     Prisoner was required under 42 U.S.C. Sec. 1997e(a) of the Prison Litigation Reform Act to exhaust available administrative remedies before pursuing disability discrimination claim under Americans with Disabilities Act, 42 U.S.C. Sec. 12101 et seq., against correctional officials for their alleged failure to treat his attention deficit hyperactivity disorder (ADHD). Chamberlain v. Overton, 326 F. Supp. 2d 811 (E.D. Mich. 2004).

DNA

Editor's Case Alert:

     Federal appeals court, by 6-5 vote, overturns prior panel decision that law requiring federal parolees to furnish blood samples for FBI crime DNA database use was an unconstitutional invasion of privacy. United States v. Kincade, #02-50380, 379 F.3d 813 (9th Cir. en banc. 2004).

     State of Pennsylvania was entitled, under its statutes, to obtain a DNA sample from a prisoner convicted of rape and murder, even though he had been subjected to DNA testing during the investigation of his crimes, when the first DNA test was before the enactment of the statute creating a DNA database. Luckett v. Blaine, 850 A.2d 811 (Pa. Cmwlth. 2004).

Drugs and Drug Screening

     A urinalysis test which was positive for the controlled substance TCH (Cannabinoids) was "some evidence" sufficient to uphold a disciplinary hearing's finding that a prisoner possessed contraband in violation of prison rules. In Re Dikes, #A104123, 18 Cal. Rptr. 3d 9 (Cal. App. 1st Dist. 2004).

Forced Feeding of Prisoners

     Prison officials did not violate inmate's constitutional rights by force-feeding him after he refused to eat for nine days. Appeals court upholds jury's determination that prisoner's fast was not for religious reasons. Introduction of evidence of prisoner's robbery convictions to impeach his testimony was, at most, harmless error. Walker v. Horn, No. 03-1896, 2004 U.S. App. Lexis 20379 (3rd Cir. 2004).

     Injunction allowing the force-feeding of an Illinois prisoner to keep him alive was justified by evidence that prisoner's purpose in staging his hunger strike was protesting the conditions of his confinement and attempting to manipulate correctional officials. People of Illinois ex rel. Department of Corrections v. Fort, No. 4-03-0661, 2004 Ill. App. Lexis 1125 (4th Dist. 2004).

Inmate Funds

     Intention of Iowa correctional officials to charge a co-payment for kosher meals provided to Orthodox Jewish inmates had no reasonable relationship to any legitimate penological interest in maintaining a fixed budget for food or teaching "financial responsibility" to prisoners. Plaintiff prisoner was entitled to summary judgment on the co-payment issue. Thompson v. Vilsack, 328 F. Supp. 2d 974 (S.D. Iowa, 2004).

Inmate Property

     Federal appeals court orders further proceedings on prisoner's claim that the confiscation of his word processor and radio, after he submitted letters critical of the prison for mailing, were retaliatory for his exercise of his First Amendment rights. Confiscation, since it was carried out under the authority of a prison administrative directive, was not a random, unauthorized action for which the availability of adequate post-deprivation state remedies would bar a federal due process claim. Allen v. Thomas, No. 03-21208, 2004 U.S. App. Lexis 20953 (5th Cir. 2004).

Mail

Editor's Case Alert:

     Regulations banning gift subscriptions of publications to prisoners and limiting their own purchase of such subscriptions was rationally related to legitimate interests in rehabilitation and institutional security. Rice v. State of Kansas, No. 89,759, 95 P.3d 994 (Kan. 2004).

     Prisoner's lawsuit alleging that prison officials tampered with his outgoing mail was insufficient to state a claim and frivolous, when it was clearly shown that his mail was actually sent out and that he even received responses, in many instances, from courts to which he sent correspondence. Smith v. Bruce, #04-3043, 103 Fed. Appx. 342 (10th Cir. 2004).

Medical Care

     Doctor's failure to treat prisoner's Hepatitis C virus with interferon was, at most, negligence, and did not constitute deliberate indifference to a serious medical need. Bender v. Regier, No. 03-3529, 2004 U.S. App. Lexis 20608 (8th Cir. 2004). [2004 JB Nov]

     A policy of requiring incoming jail inmates to use a delousing shampoo did not violate their right to refuse unwanted medical treatment.  Russell v. Richards, No. 03-3600, 2004 U.S. App. Lexis 19388 (7th Cir.).

Medical Care: Dental

     Dentist's failure to give a prisoner patient a choice to use plastic tooth-colored fillings instead of metal amalgam fillings did not constitute deliberate indifference to a serious medical need, as required to state a claim for cruel and unusual punishment in violation of the Eighth Amendment. Green v. Khrisnaswamy, 328 F. Supp. 2d 417 (W.D.N.Y. 2004).

Prison Litigation Reform Act: Attorneys' Fees

     Plaintiff who obtained injunctive and declaratory relief in class action lawsuit claiming that correctional officials failed to adequately train and supervise its employees, thereby subjecting prisoners to a risk of assaults by other inmates, but who received no monetary relief was entitled to an award of $427,158.73 in attorneys' fees and expenses. The maximum hourly rate for the attorneys' in the case was limited, under the Prison Litigation Reform Act, 1997e(d)(3) to 150% of the hourly fee for appointed lawyers paid in the federal circuit where the lawsuit was brought, rather than 150% of the rate established by the Judicial Conference. This resulted in a maximum hourly fee of $135 per hour, rather than $169.50 per hour, in this case. Court also rules that plaintiff's attorney was entitled to a fee multiplier in the case because of "excellent work" enabling case to be resolved through summary judgment and settlement, avoiding a costly trial and saving defendant officials higher attorneys' fees and costs. Skinner v. Uphoff, 324 F. Supp. 2d 1278 (D. Wyoming. 2004).

Prison Litigation Reform Act: Exhaustion of Remedies

     Even though a pretrial detainee was moved from one county jail to another and kept in solitary confinement until after the deadline for filing an administrative grievance had passed, and allegedly was never informed of the grievance procedure, he was not excused from the requirement under 42 U.S.C. Sec. 1997e(a) that he exhaust available administrative remedies before filing a federal civil rights lawsuit alleging that officers used excessive force against him during a strip search. Court notes that the detainee was not prevented from filing a grievance concerning this issue, and in fact, he did submit requests for medical treatment during that time. Turrietta v. Barreras, No. 02-2343, 91 Fed. Appx. 640 (10th Cir. 2004).

     Prisoner who failed to appear in person before prison's review board did not thereby fail to exhaust his available administrative remedies when there was no rule requiring those pursuing grievances before it to appear in person and he allegedly was not informed that the board wanted him to personally appear. Federal appeals court, therefore, reverses dismissal of prisoner's Eighth Amendment claim against correctional officers for failure to exhaust administrative remedies. Carroll v. Yates, No. 01-2931, 362 F.3d 984 (7th Cir. 2004).

Prisoner Assault: By Inmates

     Manager of residential unit in state prison was not entitled to dismissal or summary judgment in lawsuit asserting that he failed to protect prisoner from a sexual assault by his cellmate. There were genuine issues of fact as to whether the defendant knew that the cellmate was a "predatory" homosexual who had attacked others. The plaintiff prisoner claimed that he had informed the manager of this in making a request for a different cell assignment, and the court found that the inmate's right to be protected against such assaults by his cellmate was clearly established. Brown v. Scott, 329 F. Supp. 2d 905 (E.D. Mich. 2004).

Prisoner Assault: By Officers

     Officers were not entitled to qualified immunity in prisoner's lawsuit claiming that he was beaten and kicked "into submission" by them when they found him lying on his bunk, and he allegedly did not obey orders to get on the floor. The prisoner, who had allegedly caused two disturbances that day, claimed he was being quiet at the time, and that the officers bashed his head inside of or into a toilet. Simms v. Bruce, No. 03-2181, 104 Fed. Appx. 853 (4th Cir. 2004).

Prisoner Death/Injury

     Failure to warn prisoner about alleged defect on prison softball field which allegedly resulted in injury to his eye from bouncing ball did not constitute the "unnecessary and wanton infliction of pain" required to assert an Eighth Amendment claim. Christopher v. Buss, No. 02-4044, 2004 U.S. App. Lexis 20497 (7th Cir. 2004).

Prisoner Discipline

     Discipline imposed on prisoner for alleged drug dealing in facility was properly set aside when corrections officer who wrote report based on confidential informants' testimony was not called as a witness at the hearing, as the statements provided by the confidential informants lacked "any degree of reliability or trustworthiness." Further, a mandatory rule of the Louisiana Department of Public Safety and Corrections provided that "The accusing employee must be summoned when the report is based solely on information from Confidential Informants." (emphasis in original rule). Singleton v. State of Louisiana Department of Public Safety & Corrections, No. 2003 CA 1294 (La. App. 1st Cir. 2004).

     Prisoner who was transferred from a Virginia correctional facility to one in Kentucky had no protected liberty interest under the Interstate Corrections Compact requiring the application of Virginia disciplinary rules to his conduct. The ICC only requires that inmates be treated equally with similar inmates in the receiving state and gives the receiving state the responsibility of supervising and maintaining proper discipline over the transferred prisoners. Vigue v. Underwood, No. 2003-CA-000830-MR, 139 S.W.3d 168 (Ky. App. 2004).

     Disciplinary conviction of inmate for violating a rule against extortion was supported by substantial evidence including testimony by prisoner victim that accused inmate had demanded that he pay $300 for drugs he had received and allegedly already paid for or else there would be "problems." Jackson v. Goord, 778 N.Y.S.2d 565 (A.D. 2004).

Prisoner Restraint

     Federal judge sets aside jury verdict for correctional officials, and rules, as a matter of law, that keeping a prisoner in five-point restraints for almost forty-eight hours without periodic review of whether continued restraint was justified violated due process and constituted cruel and unusual punishment. Based on prisoner's conduct during brief releases, continued restraint was unjustified after three hours. Warden, while not personally involved in the incident, was liable because he failed to take corrective action after reading reports of eight prior similar incidents. Sadler v. S.K. Young, 325 F. Supp. 2d 689 (W.D. Va. 2004).

Prisoner Transfer

Editor's Case Alert:

     Federal appeals court rules that Department of Justice policy severely restricting the placement of federal prisoners in halfway houses is an unlawful limit on the statutorily mandated discretion of the Bureau of Prisons. Goldings v. Winn, No. 03-2633, 2004 U.S. App. Lexis 19012 (1st Cir. 2004). [2004 JB Nov]

     Kansas prisoner had no constitutionally protected liberty interest in remaining in a prison in that state or preventing his transfer to a prison in Oklahoma. Lynn v. Simmons, No. 90,000, 95 P.3d 99 (Kan. App. 2003).

Prisoner Transportation

     Failure to provide prisoner with a seatbelt while transporting him, while handcuffed, in bus, did not violate his constitutional rights. Additionally, claims that he was injured through negligent or reckless operation of the bus by the driver could not be pursued as federal civil rights claims. Prisoner could proceed, however, on his claims that prison medical personnel were deliberately indifferent to his serious medical needs caused by his injuries in the accident. Carrasquillo v. City of New York, 324 F. Supp. 2d 428 (S.D.N.Y. 2004).

 Private Prisons

Editor's Case Alert:

     Federal appeals court rules that Prison Litigation Reform Act's requirement that prisoners exhaust available administrative remedies before pursuing lawsuits applies to prisoners in private facilities. Boyd v. Corrections Corp. of America, No. 03-5227, 380 F.3d 989 (6th Cir. 2004).

     Nebraska prisoner who was not housed in a prison governed by a contract signed under the state's Private Prison Contracting Act, Neb. Rev. St. Sec. 47-801 to 47-807, did not have standing to challenge the constitutionality of that statute or to represent the interests of the public. As he owned no property and paid only a limited sales tax on purchases from the prison commissary, he did not have standing as a "taxpayer" to challenge the expenditure of public funds under the statute. Jacob v. State of Nebraska, No. A-02-1096, 685 N.W.2d 88 (Neb. App. 2004).

Racial Discrimination

     Prison guard's action of showing a "racially insensitive" drawing to an African-American prisoner, while "offensive, degrading, and reprehensible," was not "pervasive" or "severe" enough to be racial discrimination in violation of the prisoner's constitutional rights. The picture consisted a circle containing three pie pieces that were purported to represent the heads of three hooded figures, and the guard allegedly told the prisoner that it was "the last thing a black person see[s] when they fall down a well," the "KKK" looking down a well. Graves v. North Dakota State Penitentiary, 325 F. Supp. 2d 1009 (D.N.D. 2004).

Religion

     There was a genuine issue of fact as to whether it would be cost prohibitive to prepare meat portion of meals for Muslim prisoners according to the "Halal" dietary restrictions as compared to the cost of preparing Kosher meals for Jewish prisoners, barring summary judgment in Muslim prisoners' lawsuit. Because of existing case law, however, suggesting that prison officials sufficiently complied with Muslim prisoners' religious rights by merely providing a vegetarian or pork-free diet, defendant prison officials were entitled to qualified immunity from liability for money damages. Hudson v. Maloney, 326 F. Supp. 2d 206 (D. Mass. 2004).

     A policy of disciplining Muslim prisoners who missed their work assignments so that they could attend an hour long Friday Sabbath worship service violated their rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA) 42 U.S.C. Sec. 2000cc, because this was not the least restrictive means of satisfying a compelling governmental interest in keeping prisoners occupied or of using their labor to support the upkeep of the prison. Court also rejects prison grooming policy that imposed penalties on Muslim prisoners who refused to shave their beards for religious reasons, as prison officials also failed to show that this was the least restrictive means of addressing concerns about prisoners' ability to quickly change their appearance after escape. Mayweathers v. Terhune, 328 F. Supp. 2d 1086 (E.D. Cal. 2004).

     Prisoner whose requests to be allowed to participate in Wiccan religious rituals were denied failed to show that the Florida Department of Corrections security concerns about such rituals were not reasonably related to legitimate penological interests. The rituals involved would require the plaintiff and other inmates of the Wiccan faith to be taken outside when the moon is visible on the dates of the full moon for private "Esbat" celebratory rituals involving "Drawing Down of the Moon." The court upheld the correctional officials' concern that allowing Wiccans to conduct such private ceremonies outside of the prison housing facilities "presents security risks that are unacceptable." The court noted that the officials had accommodated the plaintiff's practice of her religion in other ways, including allowing her to purchase religious study materials, to purchase and wear religious medallions, to use tarot cards, and to participate in daily meditation. Austin v. Crosby, No. 5D03-1834, 866 So. 2d 740 (Fla. App. 5th Dist. 2004).

Segregation: Administrative

     Federal appeals court rules that "periodic reviews" of a prisoner's status in administrative segregation after he allegedly killed a corrections captain satisfied procedural due process, rejecting prisoner's complaint that these reviews were "no more than rote exercises." Such confinement, the court noted, could be constitutional even if it were based only on the prisoner's "past crimes." The court further stated, however, that "it would be helpful for judicial review" if a brief written rationalization for the prisoner's continued solitary confinement was made during these periodic reviews, although "not necessarily every ninety days." Delker v. McCullough, No. 03-2145, 103 Fed. Appx. 694 (3rd Cir. 2004).

Strip Searches: Prisoners

     Administrative directive of the Connecticut Department of Corrections mandating strip and visual body cavity searches on prisoners when they are initially placed in restrictive housing, protective custody, or close custody was reasonable and was not carried out in an unreasonable manner in the case of the plaintiff prisoner, who had previously resisted being escorted to segregation. Powell v. Cusimano, 326 F.2d 322 (D. Conn. 2004).

Visitation

     Prison rule restricting visitation for prisoners found to present a high risk of escape upheld as reasonably related to legitimate safety and security interests. Parker v. Snyder, No. 4-03-0745,  2004 Ill. App. Lexis 1206 (4th Dist. 2004).