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

Assault and Battery: Flash-Bang Devices

Editor's Case Alert:

     Throwing a "flash-bang" device "blind" into an apartment which officers believed might have one armed robbery suspect and up to eight other people sleeping there who were not involved in the robbery was an excessive use of force when it was done without a warning or the consideration of alternatives, federal appeals court rules. Officers were entitled to qualified immunity from liability, however, as the law on the subject was not clearly established at the time. Boyd v. Benton County, #02-35776, 374 F.3d 773 (9th Cir. 2004).

Assault and Battery: Handcuffs and Restraints

     Arresting officers were not entitled to qualified immunity from arrestee's claim that they used excessive force in insisting on handcuffing her with her hands behind her back despite the fact that she was unarmed, was not resisting arrest and had allegedly informed them that she had a disability stemming from having undergone shoulder fusion preventing her from placing her hands behind her back to be handcuffed. The arrest was for loitering for purposes of prostitution. Court finds that reasonable officers should have known that it was unreasonable to proceed with forcibly handcuffing her under these circumstances without further inquiry into her disabling condition. Rex v. City of Milwaukee, 321 F. Supp. 2d 1008 (E.D. Wis. 2004).

Assault and Battery: Non-Lethal Projectiles

Editor's Case Alert:

     Officer did not act unreasonably in shooting a man in the head with a non-lethal projectile in order to prevent his suicide after he refused to drop a knife he was pointing at his own heart. The force used was not excessive, despite the fact that it resulted in a skull fracture, brain damage, and disabling injuries. Mercado v. City of Orlando, #6:03-cv-227-ORL-18KRS, 323 F.Supp. 2d 1266 (M.D. Fla. 2004).

Assault and Battery: Physical

     There were genuine issues of fact as to whether police officers arresting anti-abortion demonstrators who had chained themselves together had used excessive force, precluding summary judgment in the demonstrators' federal civil rights lawsuit. There were also factual issues as to whether the town failed to adequately supervise its officers, but no evidence that the town inadequately trained its officers on the use of force. Amnesty America v. Town of West Hartford, #03-7332, 361 F.3d 113 (2nd Cir. 2004).

Defenses: Governmental Immunity

     Police officers who responded to an emergency call from medical personnel who needed help in restraining a "combative and uncooperative" ambulance patient having convulsions and who allegedly injured him while handcuffing him after he attempted to bite one of them, were entitled to governmental immunity from liability under the Indiana Tort Claims Act, I.C. 34-13-3-3(8). The officers were enforcing the law at the time, despite not placing the patient under arrest, as they were attempting to prevent him from injuring himself or others at the time. Officers who assist emergency medical personnel under these circumstances are acting within the scope of governmental immunity for law enforcement purposes under the Act. Daggett v. Indiana State Police, No. 34A02-0401-CV-45, 812 N.E.2d 1151 (Ind. App. 2004).

Defenses: Qualified Immunity

     Police officer who shot and killed suicidal man who attempted to stand in front of moving traffic on a highway, told him that "I am Jesus Christ [...] I am going to die and so are you!" and then attacked him, was entitled to qualified immunity from liability, as he acted in reasonable self defense. Kesinger v. Conner, No. 03-13883, 2004 U.S. App. Lexis 18160 (11th Cir. 2004).

Defenses: Release Agreements

     Arrestee's excessive force lawsuit against city and its officers was properly dismissed on the basis of a release-dismissal agreement he signed waiving the right to sue in exchange for the dismissal of two of the three criminal charges against him. He voluntarily signed the agreement, there was no indication of prosecutorial misconduct, and enforcing the agreement would not be against the public interest. MacBoyle v. City of Parma, No. 03-3784, 2004 U.S. App. Lexis 18412 (6th Cir. 2004).

Domestic Violence

     City could not be held liable for death of wife shot and killed by her estranged husband while she attempted to retrieve her belongings from their residence while accompanied by police officers. Officers had no constitutional duty to protect the wife against violence by the husband and their presence in the home did not increase or create the danger to her from him. Simmons v. City of Inkster, #03-72318, 323 F. Supp. 2d 812 (E.D. Mich. 2004).

     Even if employees of the county sheriff's officers were negligent in failing to arrest a husband before he shot and wounded his wife, the department was immune from a lawsuit under Mississippi state law under a statute, A.M.C. Sec. 11-46-9(1)(c) providing that a government entity is not liable for any claim in the absence of conduct by an employee acting in "reckless disregard" of the safety of others. The wife had previously signed a criminal affidavit against her husband for domestic violence, and a judge signed a warrant for his arrest, but this was allegedly never delivered to the county sheriff's department prior to the shooting incident. Collins v. Tallahatchie County, No. 2003-CA-01377-SCT, 876 So. 2d 284 (Miss. 2004).

     Domestic violence arrestee whose bail was increased from $50,000 (listed in the county's felony bail schedule) to $1 million based on a request from a deputy sheriff was not entitled to damages on his claim that this constituted unconstitutionally excessive bail. First, the bail was not unconstitutionally excessive in violation of the Eighth Amendment, in light of the injuries the arrestee's alleged victim had suffered. Second, the deputy, and his supervisor, who approved the request, were entitled to qualified immunity as there was no clearly established violation of constitutional rights, and they could reasonably have believed both that there was a risk of flight by the arrestee and that he posed a danger to his alleged victim. None of the information they provided to the judicial officer who made the decision to increase the bail was false. Galen v. County of Los Angeles, 322 F. Supp. 2d 1045 (C.D. Cal. 2004).

False Arrest/Imprisonment: No Warrant

     Police officers had probable cause to arrest armed security guard for unlawful possession of a firearm when he lacked one of several documents required to authorize him to possess a weapon while going to and from work. But the arrestee could pursue his claim that they unlawfully caused him to be detained for longer than 48 hours without a proper finding of probable cause when the only evidence they submitted at his probable cause hearing was a written complaint authored by one officer, signed by another, and with the forged signature of yet a third officer placed in the space intended for a judge or court clerk to verify that the officer signing the complaint had sworn to its truthfulness. Haywood v. City of Chicago, No. 03-3175, 378 F.3d 714 (7th Cir., 2004)

     Deputy had probable cause to arrest a motorist for alleged involvement in an accident causing bodily injury to a person after he received a dispatch concerning a hit-and-run accident which included the license number and approximate location of the vehicle, and the make and model of the car. The officer, at the time, had no reason to question the information in the dispatch, and the fact that it subsequently was shown that the motorist was not involved in the accident did not alter the result. Factual questions requiring further proceedings existed, however, concerning whether the deputy used excessive force in the course of making the arrest, and whether there was probable cause to institute a proceeding against the driver for negligent driving. Hines v. French, #1784, 852 A.2d 1047 (Md. App. 2004).

     Officers reasonably relied on confidential informant's identification of man in photograph as the person from whom she had purchased drugs on three occasions in arresting suspect, particularly after grand jury indicted him on the basis of the information. The informant had proved reliable in the past, and there were no prior difficulties in the arrest and prosecutions of drug dealers she had identified. Ayers v. Davidson, No. 03-6095, 101 Fed. Appx. 595 (6th Cir. 2004).

     Success on an arrestee's claim that she was arrested without probable cause for aggravated assault and unlawful use of a weapon following an argument with an officer in order to silence her political speech would imply the invalidity of her criminal conviction for assault. She was therefore barred from pursuing a federal civil rights claim over the arrest until and unless she succeeded in having that conviction overturned, under the principles set forth in Heck v. Humphrey, 512 U.S. 477 (1994). Minson v. Village of Hopedale, #03-3507, 102 Fed. Appx. 42 (7th Cir. 2004).

     Woman's arrest for criminal trespass for entering a restricted area where then President Clinton was delivering a speech, and refusing to leave when asked to do so was supported by probable cause. The purpose of the initial stop of the arrestee, which was aimed at protecting a U.S. President from any potential threats supported a "greater intrusion" on the plaintiff's Fourth Amendment rights than would be allowable under other circumstances. The arrestee was carrying no identification and was dressed in a uniform similar to the ones that security guards at that location were wearing. Kampinen v. Martinez, No. 03-3221, 102 Fed. Appx. 492 (7th Cir. 2004).

     Police officer had probable cause to arrest woman for disorderly conduct and harassment after he received complaints about someone randomly ringing doorbells at a condominium complex in the early morning hours. He had observed her at the location, she matched the description given of the suspect, and she told him that she had gotten lost and had rung several doorbells at the building. The officer was not required to give any credence to her explanation. Straub v. Kilgore, 100 Fed. Appx. 379 (6th Cir. 2004).

False Arrest/Imprisonment: Unlawful Detention

     Deputy sheriffs did not violate an apparently intoxicated individual's rights by detaining him and transporting him to the hospital, despite having no reason to suspect that he committed any crime. Under the deputies' "community caretaking" function, they were justified in detaining him when he was found walking along a roadway in a rural area in the winter without proper winter clothing. Additionally, they were justified in assisting, at the hospital, with his involuntary catheterization, when they were merely helping medical personnel to carry out health care decisions to which they did not assist in making. Tinius v. Carroll County Sheriff Department, 321 F. Supp. 2d 1064 (N.D. Iowa 2004).

False Arrest/Imprisonment: Warrant

     Deputy U.S. marshal acted in an objectively reasonable manner in making a capias arrest under a valid civil arrest warrant for the purposes of enforcing a lawful subpoena obtained by the U.S. government on behalf of the Department of Transportation in a pending enforcement case in which the arrestee had failed to respond to the subpoena. Additionally, the arrestee was barred under the doctrine of collateral estoppel from pursuing his civil rights claims concerning his arrest and custody by the deputy U.S. marshal under the warrant, since the court in the enforcement action had already ruled on those issues in a "show cause" hearing held following the arrest. Eck v. Gallucci, 321 F. Supp. 2d 368 (D. Conn. 2004).

Federal Tort Claims Act

     Wife who was attacked and injured by her husband when he escaped from the custody of the U.S. Marshals Service after allegedly violating a domestic violence order of protection could not pursue her lawsuit against the Marshals Service and U.S. government when she failed to exhaust available administrative remedies under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346, 2671 et seq. She also could not pursue federal civil rights claims against federal officials under 42 U.S.C. Sec. 1983 in the absence of any allegation that they acted under color of state law. Cureton v. U.S. Marshal Service, 322 F. Supp. 2d 23 (D.D.C. 2004).

Firearms Related: Intentional Use

Editor's Case Alert:

     Federal appeals court panel rules, by 2-1 vote, that the failure of a police department to issue officers non-lethal weaponry, such as OC and batons, did not provide a basis for liability for shooting an unarmed man running towards an officer. Strong dissent asserts that a policy of equipping officers only with guns was bound to result, sooner or later, in the use of unjustified deadly force. Carswell v. Borough of Homestead, No. 03-2290, 2004 U.S. App. Lexis 17732 (3rd Cir. 2004).

     Police officer did not use excessive force in drawing and pointing his gun at occupants of a vehicle even though they were not resisting in any way and had only committed a traffic violation, when they had guns in the vehicle and were in a high-crime neighborhood at 1 a.m. in the morning. Ready v. City of Mesa, #02-17102, 89 Fed. Appx. 44 (9th Cir. 2004).

First Amendment

     City ordinance creating an offense of knowing and willful "abusive or derogatory" conduct towards police officers was not a violation of an arrestee's First Amendment rights. It was not unconstitutionally overbroad, and the court could narrowly construe it to only prohibit "fighting words" which are unprotected speech. Appeals court upholds conviction of Ohio resident for referring to a police officer as a "the real cock sucker." State v. Baker, No. CA2002-11-286, 809 N.E.2d 67 (Ohio App. 12th Dist. 2004).

Freedom of Information

     Information that civil liberties organization sought under Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552, concerning the number of times FBI offices had requested permission under the USA Patriot Act, 50 U.S.C. Sec. 1861, to compel the disclosure of business records sought for authorized investigations of terrorist activity could be withheld under a national security exemption to the FOIA, 5 U.S.C. Sec. 552(b)(1). Disclosure of this information could indicate the FBI's allocation of resources in combating terrorism, which might assist the country's enemies. ACLU v. U.S. Department of Justice, 321 F. Supp. 2d 24 (D.D.C. 2004).

Malicious Prosecution

     Despite a man's acquittal on a charge of murdering his spouse, his conviction on charges of domestic violence arising out of the same facts showed that there was probable cause for his arrest and prosecution, barring his claim for malicious prosecution. Garrett v. Fisher Titus Hospital, 318 F. Supp. 2d 562 (N.D. Ohio 2004).

     Arrestee's indictment by a grand jury established a rebuttable presumption that his arrest was supported by probable cause, which barred his claim for malicious prosecution, in the absence of any showing that the indictment was obtained by bad faith police conduct, suppression of evidence by the officers, or was the product of perjury or fraud. Wiggins v. Buffalo Police Department, 320 F. Supp. 2d 53 (W.D.N.Y. 2004).

Public Protection: Minors

     State agency's alleged delay in reporting allegations of sexual abuse of minor to law enforcement could not be the basis for a federal civil rights lawsuit seeking damages for the subsequent alleged murder of the minor by the alleged abuser. This conduct did not create the danger to the minor, who remained in the custody of her mother, who was aware of the allegations of abuse. Estate of Pond v. Oregon, 322 F. Supp. 2d 1161 (D. Ore. 2004).

Pursuits: Law Enforcement

     Motorist's claim of "gross negligence" by law enforcement personnel in civil rights lawsuit arising out of a vehicle accident were insufficient to support a claim of violation of substantive due process where there was no showing that they had any intent to harm anyone. Dillon v. Brown County, No. 03-3687 2004 U.S. App. Lexis 17840 (8th Cir. 2004).

Racial or National Origin Discrimination

     African-American man convicted of assault and rape and imprisoned for a time, but subsequently exonerated of the charges did not present any evidence that the city and its police department had a widespread practice or custom of racial discrimination or allowing officers to deny persons their civil rights, as required for the imposition of municipal liability for his arrest and prosecution. Alexander v. City of South Bend, 320 F. Supp. 2d 761 (N.D. Ind. 2004).

     New Jersey appeals court rules that township police department, including its building and an individual officer, were a "place of public accommodation" under a state civil rights statute, so that an arrestee could pursue his claim against them that he had been subjected to racial discrimination by being denied "accommodations, advantages, facilities or privileges" on account of race. Ptaszynski v. Uwaneme, 853 A.2d 288 (N.J. Super. A.D. 2004).

Search and Seizure: Home/Business

     Officers who had reason to believe that juveniles were drinking alcohol at a party inside a home could have believed that they had exigent circumstances sufficient to justify a warrantless entry into the residence, based on the threat to public safety if the juveniles subsequently left the home in cars under the influence of alcohol. They were therefore entitled to qualified immunity. Radloff v. Oelwein, No. 03-3493, 2004 U.S. App. Lexis 17016 (8th Cir. 2004).

     Parole officers had no right to make a warrantless search of a woman's house to look for a parole violator who did not actually live there. Because they reasonably believed, however, on the basis of mistaken information furnished to them, that the house was the parolee's residence, they were entitled to qualified immunity from liability, since they had the right to search a parolee's home without probable cause or a warrant, and they left as soon as they determined that this was not the parolee's home. Moore v. Vega, #02-9209, 371 F.3d 110 (2nd Cir. 2004).

     Dancers at sexually-oriented dance club had a reasonable expectation of privacy in their dressing room, so that officers who came to the club to see if it was complying with a city ordinance regulating such businesses violated the Fourth Amendment by making a warrantless search of the dressing room. Federal court also rejects argument that the warrantless search of the dressing room was a valid warrantless "administrative search." The police officers who conducted the search were also not entitled to qualified immunity because there was clearly established law that officers may not, without a warrant, enter any area in which there is a reasonable expectation of privacy, in the absence of a specific exception to that principle. Bevan v. Smartt, 316 F. Supp. 2d 1153 (D. Utah. 2004).

Search and Seizure: Search Warrants

     Federal appeals court rules that the use of civilians to assist police officers in executing a search warrant did not violate the Fourth Amendment, even though a "better practice" would have been to have the magistrate issuing the warrant explicitly authorize their assistance. Officer acted reasonably in asking company security officer and supervisor to assist him in searching for computer chips, equipment, and other allegedly stolen material that he believed he did not have the necessary technical expertise to identify himself. Bellville v. Town of Northboro, #03-1510, 375 F.3d 26 (1st Cir. 2004).

     Search warrant for a journalist's home, obtained in order to find videos and three still photographs concerning the terrorist bombing nine years earlier of the Oklahoma City Federal Building, was overbroad in violation of the Fourth Amendment, since it authorized the seizure of "virtually every" piece of computer equipment, every computer file or document, and other things in the home which could not contain the photographs or videos sought, including letters. Additionally, the warrant was not supported by probable cause because the information on which it was based was "stale," consisting of statements by a third party who told law enforcement officers that he had seen the photos and video six years before, and at a location other than the journalist's home. The journalist was not accused of any crime and had stated, before the warrant issued, that the material in question had been turned over by him to Congress. Journalist was entitled to summary judgment on his Fourth Amendment claim that the officers lacked probable cause to search his home, and the officers who obtained the warrant were not entitled to qualified immunity. Arkansas Chronicle v. Easley, 321 F. Supp. 2d 776 (E.D. Va. 2004).

Search and Seizure: Vehicle

     Officer's suspicion that vehicle was speeding was objectively reasonable despite his reliance on his own observations rather than on use of radar device when he followed the vehicle for approximately a third of a mile to confirm that it was traveling at an excessive speed. His stop of the vehicle was therefore proper, and the officer acted properly in directing a passenger to exit the vehicle following the valid stop when the car contained four persons and the stop was in a "high-crime" area. Further proceedings were needed, however, on passenger's claim that the officer used excessive force against him in the course of the stop and on the issue of whether the passenger cooperated with the officer's instructions or was validly arrested for obstruction of justice. Veney v. Ojeda, 321 F. Supp. 2d 733 (E.D. Va. 2004).

Strip Searches

     Female police officer's warrantless strip search of a female resident of a children's home was justified by her reasonable suspicion that she possessed narcotics, and even if she were mistaken in believing that she could conduct such a search under the circumstances, she was entitled to qualified immunity. Reynolds v. City of Anchorage, No. 02-6443, 2004 U.S. App. Lexis 16301 (6th Cir. 2004).

     An arrestee who was subjected to a body cavity search for drugs after being arrested for a misdemeanor charge of marijuana possession and then released was not entitled to an injunction against the city's practice of conducting such searches. The trial court had not certified a class action in the case, and unless the same series of events were to occur to the plaintiff again, there was no present controversy between him and the city concerning its handling of future arrests. The plaintiff could pursue his claim for money damages, and if the trial court ruled that the practice involved was unconstitutional, the appeals court stated, the city would have to "cease" the practice "whether or not a formal injunction issues." Campbell v. Miller, #03-3018, 373 F.3d 834 (7th Cir. 2004).

Age Discrimination - General

      Employer was not entitled to terminate a 73 year-old driver because a new insurance policy excluded drivers over age 70. Enlow v. Salem-Keizer, 371 F.3d 645 (9th Cir. 2004).

Ambulance Services

     Illinois appellate court, in a 2-to-1 holding, reinstates a wrongful death action against a fire district after EMTs waited seven minutes before administering drugs to a woman who was suffering an allergic reaction to walnuts, causing her throat to swell shut, resulting in her death. The lower court improvidently dismissed the action pursuant to the Illinois Emergency Medical Services Act. Kirwan v. Lincolnshire-Riverwoods Fire Prot. Dist., 2004 Ill. App. Lexis 762 (2004).

Civil Service

     Federal government publishes rules to establish a performance-based pay system for senior-level executives, scientists, and professional employees. Nine criteria will be used in the determination process. Senior Executive Service Pay and Performance Awards and Aggregate Limitation on Pay, 69 (145) Fed. Reg. 45535-45546 (July 29, 2004).

Collective Bargaining - In General

     Pennsylvania appellate court holds that a public employer is not required to honor continuing wage increases mandated by an expired bargaining agreement. Pa. State Park Officers Assn. v. Pa. Labor Rltns. Bd., 2004 Pa. Commw. Lexis 549 (Pa. Cmwlth. 2004).

     The NLRB has ruled that student assistants are not "employees" within the meaning of federal bargaining laws, and dismissed a union's petition to represent a unit of students who serve as teaching and research assistants and proctors at a university. Brown Univ. and UAW, #1-RC-21368, 342 NLRB No. 42 (NLRB 2004).

Disability Rights and Benefits - Other issues

     California appellate court denies a disability pension to a partially disabled firefighter who initially was terminated for disciplinary reasons, and then failed to qualify for reinstatement. Unless the termination is because of an employee's disability, he or she is not entitled to seek a disability pension after a disciplinary termination. Smith v. City of Napa,120 Cal.App.4th 194 (2004).

Disciplinary Hearings - Proof Required

     Arbitrator holds that management did not have just cause to fire a worker who was accused of sexually harassing two women coworkers, even though the HR director testified that the women had complained to her, where the complainants refused to testify at the hearing; the "just cause" requirement for discharge must include an opportunity for cross-examination of the complainants. Cincinnati Metrop. Housing Auth. and AFSCME, 119 LA (BNA) 1389 (Heekin, 2004).

Disciplinary Offenses - In General

     Arbitrator holds that a fire district can terminate a paramedic/firefighter if the insurance carrier refuses to include him within the fleet policy, based on a DUI incident. Cumberland Trail Jt. Fire Dist. and C.T. Career Firefighters L-3667, FMCS #04-03014-T (Petersen, 2004).

Disciplinary Searches

     Eighth Circuit holds that a state employee lacked a legitimate expectation of privacy as to the contents of his state-owned computer. Remote location search upheld.. U.S. v. Thorn, 2004 U.S. App. Lexis 14295 (8th Cir. 2004).

Drug Screening and Specimen Testing

     Illinois appellate court reinstates a deputy that had innocently consumed some Peruvian tea that contained cocaine metabolites. The panel refused to enforce a zero tolerance policy that was unrelated to guilt, simply because it might make it more difficult to fire officers that have an explanation of why they tested positive. Garrido v. Cook Co. Sheriff's Merit Bd., 811 N.E.2d 312 (2004).

Domestic Partner Rights

     New Jersey becomes the fifth state to officially recognize same-sex couples. Domestic partner legislation also exists in California and Hawaii; Vermont has same-sex civil unions, and Massachusetts has legalized same-sex marriage. The New Jersey forms and certificates are similar to those used for marriage licenses, and residents can apply for a partnership in any municipality, not just the jurisdiction in which the couple lives. The law applies to same-sex adults and opposite-sex couples who are 62 and older.

     By 41 to 4, the New York City council overrides the mayor's veto of a bill to require firms who have business contracts with the city (for $100,000 or more) to offer domestic partner benefits to their employees. The ordinance, known as "Dominique's Law," was modeled on similar legislation enacted in Los Angeles, San Francisco and Seattle. Equal Benefits Bill #137-B, 175 Lab. Rltns. Rep. (BNA) 33.

     California Supreme Court invalidates same-sex marriages performed in San Francisco. The court did not reach the constitutional issues, and only addressed the narrow issue of whether the mayor could defy state statutes regulating marriage licenses. Lockyer v. C&C of San Francisco, #S1222004 Cal. Lexis 7238 (2004).

     A trial court judge in Seattle, WA, has concluded that same-sex persons are entitled to marry for constitutional reasons. Andersen v. King County, #04-2-04964-4 (King. Co. Super. Ct. 2004).

Educational Requirements and Incentives

     Arbitrator denies educational pay supplement to a grievant that was not granted a waiver for his course work, even though management may have improvidently given waivers to two others. To compound an error would open the door to others and defeat the purpose of the incentive. Miami Twp. and FOP Ohio, 119 LA (BNA) 1457 (Speroff, 2004).

     Arbitrator rules that management did not violate the bargaining agreement when it denied the grievant overtime pay and tuition reimbursement to take courses for a position on the air rescue unit, because he needed the courses to be eligible to take the new job, and did not need the courses for his current position as a paramedic. Broward Co. Sheriff's Dept. and B.C. Prof. Paramedics and F/F, IAFF L-3333, 119 LA (BNA) 1281 (Chandler, 2004).

Firearms/Weapons - Other Issues

Editor's Case Alert:

     Utah Supreme Court allows a private employer to discipline workers who violate its policies and have a firearm in their vehicles while in employer-provided parking lots. Hansen v. America Online, 2004 WL 1608821, 2004 Utah Lexis 136 (2004).

Handicap Laws / Abilities Discrimination - Accommodation - General

     President Bush has signed an Executive Order directing federal agencies to address the safety and security needs of people with disabilities during emergencies, including earthquakes, tornadoes, fires, floods, hurricanes and acts of terrorism. The Dept. of Homeland Security has created an Interagency Council to oversee the implementation of new policies resulting from the Executive Order. Federal appeals panel rejects a disabilities discrimination claim brought by a detention supervisor who was not promoted. She was off work due to an injury at the time, and the city had a rational policy of not promoting injured or ill candidates who had not returned to work with a medical fitness certificate. Kincaid v. City of Omaha, 2004 U.S. App. Lexis 16355 (8th Cir. 2004).

Handicap Laws / Abilities Discrimination - Constitutionality

     State officials are not immune under the Eleventh Amendment from ADA litigation seeking only prospective (injunctive) relief. McCarthy v. Hawkins, 2004 U.S. App. Lexis 16538 (5th Cir. 2004)

Hearing (Audio) Impairment

     Federal court finds that investigative questioning and the arrest of a deaf mute is a "government program" under the accommodations section of the ADA -- requiring the assistance of a certified sign language interpreter -- "but only when the circumstances surrounding the activity is 'secure' and no 'threat to human safety' is present. Summary judgment was given to police officers because it was unclear that the arrest was safely made. Longworth v. St. Louis Metrop. Police Dept., #4:03CV897 (E.D. Mo. 2004).

Injuries to Employees

Editor's Case Alert:

     Wisconsin Supreme Court allows a suit by a police officer that was bitten by a dog. The "Firemen's Rule" did not apply to this kind of injury. Cole v. Hubanks, 681 N.W.2d 147 (2004).

Moonlighting (Secondary Employment)

     Arbitrator holds that a state agency had just cause to discipline an employee for violating a prohibition on outside employment. However, the suspension was reduced from 10 to 3 days, because a former supervisor had given him permission to do moonlighting in the past, and this contributed to employee's conduct. State of Ohio Bur. of Workers Comp. and Ohio Civil Serv. Employees Assn. AFSCME L-11, 119 LA (BNA) 1121 (Murphy, 2004).

National Security Issues

     Federal court dismisses a whistleblower action brought by a terminated FBI contract translator. Although the plaintiff reported security lapses, the court dismissed the action because a trial could expose intelligence-gathering methods and disrupt diplomatic relations with foreign governments. Edmonds v. Dept. of Justice, 2004 U.S. Dist. Lexis 12355 (D.D.C. 2004).

Physical Fitness Requirements, Agility Tests and Standards

Editor's Case Alert:

     Federal appeals panel rejects a gender discrimination suit by a vice sergeant who failed the fitness test when her job was combined with the SWAT unit into a special enforcement unit. Male vice officers had to pass the same test. Stahl v. Bd. of Cmsnrs. of Unif. Govt. Wyandotte Co./Kansas City, KS, 2004 U.S. App. Lexis 11476 (10th Cir. 2004).

Promotional Rights, Procedures and Performance Appraisals

     Federal appeals court affirms an order correcting the plaintiff's Air Force service record, but it was outside the scope of military review for the Court of Claims to order his reinstatement to active duty at the rank of major, with back pay. Roth v. U.S., 2004 U.S. App. Lexis 16548 (Fed. Cir. 2004).

Race: Reverse Discrimination

     Fifth Circuit affirms a $434,279 compensatory damage award to 35 white New Orleans police officers that were passed over for promotion because of their race. Management manipulated a consent decree to favor minority promotions to sergeant and lieutenant. Albright v. City New Orleans, 2004 U.S. App. Lexis 15123 (5th Cir. 2004).

Religious Discrimination

     Wiccan paganist wins suit against city council members who ended their opening prayers with "In Christ's name we pray." Fourth Circuit affirms an injunction prohibiting the council "from invoking the name of a specific deity associated with any one specific faith or belief in prayers given at town council meetings." Wynne v. Town of Great Falls, 2004 U.S. App. Lexis 15186 (4th Cir. 2004).

Residency Requirements

     Federal appeals court upholds the termination of a city employee for residency violations. Although the employee claimed that management had been aware that he lived only two days per week within the city limits he failed to prove that the city council was aware of or approved of his living arrangements. Gusewelle v. City of Wood River, 2004 U.S. App. Lexis 14088 (7th Cir. 2004).

Resignations

     "An early retirement request, initiated by an employee, is presumed to be a voluntary act, and where an employee is faced merely with the unpleasant alternatives of resigning or being subject to removal for cause, such limited choices do not make the resulting resignation an involuntary act." Keyes v. Dist. of Columbia, 372 F.3d 434 (D.C. Cir. 2004).

Sex Discrimination - Equal Pay & Opportunity Claims

     Private employer and the EEOC agree to a $54 million settlement of claims that women employees were the victims of pay and promotional discrimination. $12 million will go to a single employee, $40 million to other former and current women employees, and $2 million for diversity training. EEOC v. Morgan Stanley, #01 Civ. 8421 (Stlmt. S.D.N.Y. 2004) .

Stress Related Claims and Defenses

     MSPB judge overturns the firing of a public employee because she had body odor, and reduces the penalty to a 90-day suspension. Her punishment was lightened because she suffers from depression. Heilpern v. Dept. of the Army, #PH-0752-03-0271-I-1 (MSPB-AJ 2003; rptd. 2004).

Sexual Harassment - In General

     Appeals court finds the city acted promptly and effectively, following the plaintiff's sexual harassment complaint, and her resignation was not a constructive discharge. A summary judgment for the city is affirmed. McPherson v. City of Waukegan, 2004 U.S. App. Lexis 16513 (7th Cir. 2004).

     Federal court refuses to dismiss a suit against the city for sexual harassment. A male officer displayed a pornographic picture on a general-use computer and then laughed about the coworker's subsequent distress. Williams v. Chicago, N.D. Ill., 2004 U.S. Dist. Lexis 13187 (N.D. Ill. 2004).

Wrongful Discharge/Discipline: Damages & Settlements

     Federal appeals court rejects a damage claim for a wrongful disciplinary suspension, because a successor police chief reversed that decision, with back pay. Corrective action prevents a successful Sec. 1983 damage action. Johnson v. City of Louisville, 2004 U.S. App. Lexis 16200 (6th Cir. 2004).

Access to Courts/Legal Info

     Trial judge improperly dismissed prisoner's lawsuit claiming that he was improperly denied a court appearance and access to a lawyer for 73 days while being held in jail on an alleged parole violation. The prisoner's claim was for denial of access to the courts, so that success in his lawsuit would not necessarily imply the invalidity of the arrest for violation of parole. French v. Adams County Detention Center, No. 04-1094, 2004 U.S. App. Lexis 16648 (10th Cir. 2004).

AIDS Related

     Prison warden and other officials were not entitled to qualified immunity in lawsuit by three prisoners claiming that they exhibited deliberate indifference to attacks on them and other actions by HIV-positive prisoner who threatened to "infect them," urinated on the floor and placed fecal matter there when assigned to "clean" the restrooms. Plaintiffs also claimed that they faced unlawful retaliation by some of the defendants after filing their lawsuit. Nei v. Dooley, #03-3261, 372 F.3d 1003 (8th Cir. 2004).

Death Penalty

     Texas prisoner on death row could pursue federal civil rights lawsuit claiming that the state's protocol for lethal injection violates the Eighth Amendment prohibition on cruel and unusual punishment, since that claim challenged the method of execution rather than the death sentence itself. Court finds that the prisoner was entitled to a temporary restraining order staying his execution by this method. Harris v. Johnson, 323 F. Supp. 2d 797 (S.D. Tex. 2004).

Defenses: Eleventh Amendment Immunity

     A county juvenile training facility was not entitled to Eleventh Amendment sovereign immunity against liability in a federal civil rights lawsuit concerning the alleged failure to adequately train employees and failure to investigate and prevent sexual abuse committed against one juvenile resident by another. The facility was not an arm of the state, because the county rather than the state would be responsible for paying any damage award against the facility, even though the facility was built pursuant to a state statutory scheme concerning juveniles found to be delinquent, dependent, abused, unruly or neglected, as well as juvenile traffic offenders. S.J. v. Hamilton County, Ohio, No. 02-3852, 374 F.3d 416 (6th Cir. 2004).

Defenses: Statute of Limitations

     One-year statute of limitations for personal injury lawsuits under Kentucky state law applied to a prisoner's declaratory judgment action claiming that his due process rights had been violated during a prison disciplinary hearing which found him guilty of violation of rules concerning dangerous contraband. Million v. Raymer, No. 2002-SC-0205-DG, 136 S.W.3d 460 (Ky. 2004).

Disability Discrimination: Prisoners

     Federal trial court reinstates prisoner's disability discrimination case against prison officials under the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12101 et seq. claiming that his rights were violated when he was denied the services of an aide to take him to the law library, school, recreation and the barbershop. The prisoner uses a wheelchair because of severe osteoarthritis in his hips, and the trial court originally dismissed the ADA claim on the basis of them being barred by sovereign immunity under the Eleventh Amendment because his claim was against state officials. The claim was reinstated on the basis of Tennessee v. Lane, #02-1667, 124 S. Ct. 1978 (2004), finding that Congress expressed its intent to abrogate Eleventh Amendment immunity unequivocally when it wrote the ADA and that it had the power to enact at least that portion of it that applies to cases implicating the fundamental right of access to the courts. Flakes v. Frank, 322 F. Supp. 2d 981 (W.D. Wis. 2004).

Drugs & Drug Screening

     New York prisoner was not improperly denied the right to call witnesses at the disciplinary hearing finding him guilty of violating prison rules against the use of controlled substances based on the hearing officer's refusal to allow him to call every other prisoner who provided a urine sample on the same date. Finding of guilt was based on substantial evidence and prisoner failed to explain what all these witnesses would add, other than arguments based on "pure speculation." Graziano v. Selsky, 779 N.Y.S.2d 848 (A.D. 3d Dist. 2004).

     Disciplinary finding against prisoner for violating rules against marijuana use was supported by sufficient evidence, including drug test results which were admissible despite certain problems concerning the chain of custody of a urine sample, where the sample was clearly identified and had an intact seal when it arrived in a reasonable period of time at the testing lab. Lucas v. Voirol, No. 2003-CA-001811-MR, 136 S.W.3d 477 (Ky. App. 2004).

     Disciplinary determination that prisoner violated rules against possession of drugs was adequately supported by substantial evidence, including positive drug test results and misbehavior report. The chain of custody of the sample was shown, along with evidence that the testing procedures followed were proper. Otero v. Selsky, 779 N.Y.S.2d 648 (A.D. 3d Dept. 2004).

First Amendment

Editor's Case Alert:

     While prisoner successfully proved that prison security director improperly put him in segregation in retaliation for filing "too many" complaints and grievances, in violation of his First Amendment rights, under the Prison Litigation Reform Act, he was not entitled to an award of compensatory damages in the absence of physical injury, but only $1 in nominal damages. Appeals court also upholds the decision not to award punitive damages, since the defendant acted out of "frustration," rather than with an "evil motive," and upholds application of PLRA section to limit attorneys' fee award in the case to $1.50. Royal v. Kautzky, No. 02-3446, 375 F.3d 720 (8th Cir. 2004).

     Federal appeals court rules that trial judge lacked an adequate factual basis to find that a ban by Congress on the use of federal funds to distribute sexually explicit publications to prisoners was "reasonably related" to a legitimate governmental interest in rehabilitation. Ramirez v. Pugh, No. 02-2101, 2004 U.S. App. Lexis 16619 (3d Cir. 2004).

     Alabama prisoner could not pursue declaratory judgment action for the purpose of obtaining a determination that a program allowing inmates to view movie videos they were allowed to borrow from a correctional facility library as an incentive for good behavior does not violate federal copyright law. The correctional facility discontinued the program because of a concern that it might violate copyright law. The court found that the prisoner suffered no "injury" from the suspension of the program giving him standing to pursue the claim, and the possibility that the program violated copyright laws did not subject the prisoner himself to any possible litigation, nor did he himself have any interest in the copyrights of the movies in question. Lane v. Sticker, No. 2011161, 876 So. 2d 469 (Ala. Civ. App. 2003).

Incarceration Cost Recovery

     Prisoner's due process rights were not violated by court proceeding which allowed State of Illinois to attach $4,000 in a bank account in the prisoner's name to recover costs incurred during his incarceration. State complied with applicable service and notice requirements of pre-judgment attachment statute. People Ex Rel. Director of Corrections v. Edwards, No. 5-02-0455, 812 N.E.2d 355 (Ill. App. 5th Dist. 2004).

Inmate Funds

     Inmate had no protected property interest in the interest that accrued on an account containing his work release wages, so that a policy of the Alabama Department of Corrections prohibiting him from receiving such interest was constitutional. Givens v. Alabama Department of Corrections, No. 03-14086, 2004 U.S. App. Lexis 17248 (11th Cir. 2004).

     State statute authorizing Kansas correctional officials to adopt a regulatory scheme for assessing fees against inmates did not violate a prisoner's due process or equal protection rights and was not an invalid retroactive enhancement of his punishment. The legislation was supported by legitimate goals such as teaching fiscal responsibility and reimbursing the state for the costs of incarcerating the prisoners rationally related to the scheme adopted. Elliott v. Simmons, No. 03-3280, 100 Fed. Appx. 777 (10th Cir. 2004).

Inmate Property

     Prisoner was not entitled to relief from correctional institution's seizure and forfeiture of personal property which exceeded rules concerning space limitations for such property in his cell. Prisoner failed to show that the state lacked a "legitimate interest" in regulating the volume of property kept in prisoner cells, including legal materials, and the court rejected the argument that he had an unqualified right to keep all of his legal material in his cell. Prison rules allowed him to keep legal materials so long as they fit within the 2.4 cubic feet limitation generally applicable to all personal property kept in inmate cells. In re Application for Forfeiture of Unauthorized Items Confiscated From Inmates Pursuant to AR 5120-9-55, No. CA2003-05-021, 811 N.E.3d 589 (Ohio App. 12 Dist. 2004).

Medical Care

     Illinois statute which allowed the involuntary administration of psychotropic medication to a pretrial detainee was not unconstitutional, but in the case of the individual plaintiff detainee, the trial court improperly granted the state's request to medicate him. In Re Mark W., No. 05-02-0461, 811 N.E.2d 767 (Ill. App. 5th Dist. 2004).

     Medical treatment of federal prisoner for chronic hepatitis C complied with Bureau of Prison regulations, and the prison warden was entitled to summary judgment on prisoner's claim that he was denied proper medical care. Kane v. Winn, 319 F. Supp. 2d 162 (D. Mass. 2004).

     The statement, in a notice of intent to file a claim against the state for the wrongful death of an inmate, that the prisoner died due to negligence in the medical care provided for his "condition of congestive heart" was adequate to present a claim. Rodriguez v. State of New York, 779 N.Y.S.2d 552 (A.D. 2d Dept. 2004).

     Prisoner's assertion that prison officials, in the course of testing his blood glucose level, "jabbed" a device "deep within the flesh" of his finger, causing "profuse bleeding" and "serious nerve damage," subsequently failing to provide adequate medical care for the resulting injuries was sufficient to state a claim for violation of the Eighth Amendment. Morgan v. Duran, No. 03-17134, 102 Fed. Appx. 587 (9th Cir. 2004).

Officer Assault: By Inmate

     New York's highest court upholds reversal of award of damages for death of two officers shot and killed by a prisoner transported from a correctional facility to a prosecutor's office for a polygraph test. In the lawsuit by the estates of the officers, the plaintiffs contended that their deaths were caused by the improper use of a detective squad's locker room as a prisoner detention area, which allowed the prisoner to gain access to the locker containing the gun because its lock was either open or defective, and that the city was therefore liable for violating state labor law and its own city code requiring that buildings be maintained in a safe condition. While a jury awarded verdicts of $5,226,252 for the survivors of one officer, and $8,975,625 for the second, these awards were overturned on appeal. The immediate decision upholds those reversals and held that a provision of state labor law imposing a general duty to furnish a workplace free from recognized hazards "does not cover the special risks faced by police officers because of the nature of police work." The court also rejected the argument that rules requiring building owners to maintain safe conditions could be used as a basis for liability in these circumstances. Williams v. City of New York, 811 N.E.2d 1103 (N.Y. 2004).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner's raising of his complaint in a disciplinary hearing might amount, in some circumstances, to exhaustion of remedies prior to commencing litigation for purposes of Prison Litigation Reform Act. Johnson v. Testman, No. 02-0145 2004 U.S. App. Lexis 17236 (2d Cir. 2004)

     Prisoner's civil rights lawsuit claiming that correctional officers assaulted him was barred on the basis of his failure to exhaust available administrative remedies as required by 42 U.S.C. Sec. 1997e. While he did write letters of complaint to prison officials, he did not report the alleged assault to the officers' immediate supervisor, and did not appeal adverse determinations concerning his complaint. Stephenson v. Dunford, 320 F. Supp. 2d 44 (W.D.N.Y. 2004).

Prisoner Assault: By Inmates

     Correctional officer was entitled to qualified immunity from liability in a lawsuit against him for failing to intervene, and instead running to get help, when a prisoner he was escorting back to his cell was stabbed to death by another prisoner. There was no clearly established constitutional right to have the officer immediately intervene rather than summoning assistance. Rios v. Scott, No. 03-41088, 100 Fed. Appx. 270 (5th Cir. 2004).

Prisoner Assault: By Officers

     Detainee failed to establish that detention center guards used excessive force against him. Evidence showed that he verbally confronted them and physically pulled back from a booking counter when they tried to frisk him to determine if he possessed any concealed weapons. This determination was supported by a videotape of the incident in question. Tapia v. City of Albuquerque, No. 03-2133, 101 Fed. Appx. 795 (10th Cir. 2004).

Prisoner Death/Injury

     Prisoner who was injured while doing electrical work as part of prison work assignment was entitled to reversal of summary judgment for defendants in his Eighth Amendment deliberate indifference claim against supervisors. There was sufficient evidence to raise a factual issue as to whether the defendants knew of the risks the prisoner would face from the work he was being assigned to do. Hall v. Bennett, No. 02-2683, 2004 U.S. App. Lexis 16609 (7th Cir. 2004).

     Evidence sufficiently established that prisoner's injury in a slip and fall while exiting a prison shower was not caused by any negligence on the part of prison officials. Wigfall v. Texas Department of Criminal Justice, No. 01-02-01264-CV, 137 S.W.3d 268 (Tex. App. 1st Dist. 2004).

Prisoner Discipline

     Disciplinary determination that prisoner violated rules against the possession of contraband was adequately supported by substantial evidence, including his admission that he had an empty pretzel bag containing loose poppy seeds and a misbehavior report. Gonzalez v. Goord, 779 N.Y.S.2d 602 (A.D. 3rd Dept. 2004).

     Barring an accused inmate from two disciplinary hearings was necessary to preserve safety based on his conduct at another hearing held earlier that same day which required his forcible removal and resulted in a struggle with the officers bringing him back to his cell. Alexander v. Ricks, 779 N.Y.S.2d 606 (A.D. 3d Dept. 2004).

     Circumstantial evidence presented at a disciplinary hearing concerning the prisoner's alleged committing of an "unhygienic act" of throwing feces and damaging of state property was sufficient to support a determination of his guilt. Correctional officer indicated that there had been no feces in a cell when he observed it earlier, that the presence of the feces outside the bars indicated that they had been thrown inside from the outside, and that the accused prisoner, serving as a food porter, was the only inmate present outside the cell during the period in question. Martinez v. Goord, 779 N.Y.S.2d 824 (A.D. 3d Dept. 2004).

     Prisoners were entitled to habeas relief when their disciplinary convictions, which were the basis for revocation of their earned credits, were not supported by "some evidence." Their requests for disbursements from their inmate mandatory savings accounts to pay court copying fees for records and transcripts needed to prepare applications for post-conviction relief were reasonable under both a prison policy concerning the use of funds in such accounts and an Oklahoma state statute, and their disciplinary convictions for obtaining money by false pretense were therefore not supported by the evidence. Gamble v. Calbone, #03-6057, 375 F.3d 1021 (10th Cir. 2004).

Prisoner Suicide

     Deliberate indifference to the risk that a detainee in a county jail would commit suicide was not shown where the jailer removed shoes and socks from the detainee's cell, had him placed in a padded "lunacy cell," and instructed personnel to place him on a suicide watch. Additionally, when the detainee was subsequently observed in the cell without clothes and in a "frog-like" position, a nurse was instructed to observe the detainee to assist in determining whether the cell should be entered, and it was concluded that the detainee was merely sleeping at the time. The fact that this conclusion was incorrect might show negligence, but not the deliberate indifference required for a civil rights claim. Gray v. Tunica County, Mississippi, #03-60761, 100 Fed. Appx. 281 (5th Cir. 2004).

Religion

     California prison regulation which prohibiting inmates from wearing long hair was reasonably related to legitimate penological interests such as security, hygiene, prison workplace safety, and prevention of escapes. Accordingly, the regulation did not violate either the First Amendment of a Native American prisoner or a federal statute concerning Native American religious freedom. Henderson v. Terhune, #02-17224, 2004 U.S. App. Lexis 16613 (9th Cir. 2004).

     Further proceedings were required to determine whether prison officials' refusal to allow a Jewish prisoner to have a Sukkah booth in the prison yard, an enclosure within which to celebrate the religious holiday of Sukkot and within which to eat meals during the holiday, was based on genuine security concerns or were a pretext for interfering with his right to exercise his religion. Defendants were not entitled to qualified immunity from prisoner's claims. Wares v. Vanbebber, 319 F. Supp. 2d 1237 (D. Kan. 2004).

     Prison policy prohibiting inmates from wearing a visible string of Muslim prayer beads outside of his cell, when the necklace was larger than 1/8th of an inch in diameter did not violate his right to religious freedom. The rule was the least restrictive means that prison officials had of pursuing a legitimate penological interest in suppressing gang activity, and allowed the Muslim prisoner to wear prayer beads outside his cell if they were small enough so that they would be "unobtrusive" under his shirt. Charles v. Frank, No. 04-1674, 101 Fed. Appx. 634 (7th Cir. 2004).

Strip Searches: Prisoners

Editor's Case Alert:

     Federal appeals court rules that strip searches performed on young girls following their entry into custody in juvenile detention centers were constitutional on the basis of the special need to protect them and other children in the facility, but that "repetitive" strip searches conducted while the juveniles remained in custody are violative of the Fourth Amendment unless there is reasonable suspicion that the juvenile possesses contraband. N.G. v. State of Connecticut, No. 02-9274, 2004 U.S. App. Lexis 18834 (2nd Cir. 2004).

Video Surveillance

Editor's Case Alert:

     Sheriff's action in placing web cameras in a pre-trial detention center to broadcast images of the detainees on the Internet violated their 14th Amendment substantive due process right by subjecting them to punishment, federal appeals court rules, and therefore was properly enjoined. Demery v. Arpaio, No. 03-15698, 378 F.3d 1020 (9th Cir. 2004).