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

Administrative Liability: Training

     Arrestee failed to contradict the city's evidence that its police officers were properly trained and could not, therefore, pursue a claim against the city or chief of police for failure to properly train and supervise officers. The plaintiff asserted that his arrest was based on false information and information from bribed witnesses, but failed to show any evidence that police officers had any reason to know that the information implicating him in a murder was false. Hampton v. City of Jonesboro, Arkansas, No. 03-1811, 90 Fed. Appx. 971 (8th Cir. 2004).

Assault and Battery: Physical

     Officer did not use excessive force in screaming at a truck's occupants to raise their hands, placing his hand near his holstered weapon, and threatening the incarcerate one of the suspects, following a chase that occurred because the officer suspected a passenger of firing a shot at an antelope, a protected species. Because the suspected offense involved the firing of a loaded firearm, the officer could reasonably perceive a risk of injury or danger, and he therefore acted in an objectively reasonable manner. Wheeler v. Scarafiotti, No. 02-2297, 85 Fed. Appx. 696 (10th Cir. 2004).

Attorneys' Fees: For Plaintiff

     Adult nightclub seeking to feature nude or semi-nude dancers was a "prevailing party" entitled to an award of $49,175 in attorneys' fees despite the fact that their civil rights lawsuit against a restrictive zoning ordinance was dismissed as moot after the defendant county repealed the challenged restriction. Federal appeals court notes that the repeal came only after the trial court had already ruled on the merits of the challenge, and that the trial court only delayed entering a final order to allow the county a continuance to make the change to the law. Palmetto Properties, Inc. v. County of DuPage, No. 03-2174, 2004 U.S. App. Lexis 13952 (7th Cir.).

     Plaintiff who was awarded $10,000 in damages against one officer for alleged excessive use of force against him at his apartment was entitled to an attorneys' fee award as a "prevailing party," even though he would not receive any of the $10,000 award because he had previously entered into a $25,000 settlement with other defendants in the case, which fully compensated him for damages in excess of those the jury found occurred. Concession by plaintiff's attorney that the jury's award was to be set-off by the prior settlement did not deprive the plaintiff of "prevailing party" status. Attorneys' fees and expenses of $10,572.74 were therefore awarded. Baim v. Notto, 316 F. Supp. 2d 113 (N.D.N.Y. 2003).

Defenses: Collateral Estoppel

     The issues as to whether a husband was falsely arrested for assault and whether his former wife should have been arrested instead were already litigated and determined in their dissolution of marriage proceeding, and the husband therefore was barred by the doctrine of collateral estoppel from raising and relitigating them again in his lawsuit for false arrest and malicious prosecution. Law enforcement defendants were entitled to summary judgment. Riemers v. Anderson, No. 20030317, 680 N.W.2d 280 (N.D. 2004).

Defenses: Statute of Limitations

     Claim against sheriff for alleged unlawful arrest and confinement accrued, for statute of limitations purposes, when the plaintiff was arrested for criminal trespass, when he was never charged or prosecuted for the offense, and the plaintiff's lawsuit was therefore properly dismissed as barred by a two-year statute of limitations. Dopp v. Rask, No. 03-3150, 91 Fed. Appx. 79 (10th Cir. 2004).

Disability Discrimination

     Police officers' actions in shooting and killing a deaf man armed with a rifle in a parking lot who intended to protest discriminatory treatment of disabled people did not constitute disability discrimination under the Americans with Disabilities Act (ADA). The shooting occurred because the decedent's actions threatened others, not because of his disability. Vincent v. Town of Scarborough, #02-239, 2003 U.S. Dist. Lexis 20910; confirmed, 2003 U.S. Dist. Lexis 22934 (D. Me. 2003).

Dogs

     Minnesota statute imposing strict liability for dog bites on dog owners ruled non-applicable to police dogs in lawsuit brought for damages against police department by wife for police dog's biting of her husband during his arrest. Hyatt v. Anoka Police Department, No. A03-1707, 680 N.W.2d 115 (Minn. App. 2004).

     Police officer's use of police dog to stop and subdue motorist who fled on foot after resisting arrest while driving under the influence of alcohol was not excessive force under the circumstances. Tilson v. City of Elkhart, Indiana, 317 F. Supp. 2d 861 (N.D. Ind. 2003).

Domestic Violence

Editor's Case Alert:

     Federal appeals court, in case where estranged husband took and murdered his three minor daughters, in violation of domestic protection order, rules that such an order, when enforcement is required by a state statute, creates a property interest protected by the due process clause of the Fourteenth Amendment. Claims against city for failing to enforce order are reinstated, but individual officers were entitled to qualified immunity. Gonzales v. Castle Rock, #01-1053, 366 F.3d 1093 (10th Cir. en banc, 2004).

     Officers had probable cause to arrest a man's fiancee for violating a California state statute against the willful infliction of "corporal injury" on a cohabitant, even if she lacked any intention to injure him. Both the man and his fiancee admitted to the officers that she had punctured his ear when trying to restrain him by grabbing his arm and the officers also observed both the blood on the fiancee's shirt and the puncture wound on the man's ear. Estrada v. County of Los Angeles, No. 02-56742, 91 Fed. Appx. 28 (9th Cir. 2004).

Expert Witnesses

     A Florida Highway Patrol traffic homicide investigator was properly allowed to testify as an expert witness in accident reconstruction in a wrongful death lawsuit brought by a deputy sheriff's estate against the owner and operator of a truck that struck the deputy. He testified, based on his work at the accident scene, that the deputy pulled out into the highway when the truck was so close that the truck driver did not have time to avoid the collision. The court rejected the plaintiff's argument that the investigator should have been barred as an expert because a jury would give a law enforcement officer's testimony undue weight. "When a law enforcement officer has been properly qualified as an expert, the officer may testify to matters that are within the officer's expertise." Alexander v. Penske Logistics, Inc., No. 3D02-2793, 867 So. 2d 418 (Fla. App. 3d Dist. 2003), rehearing denied, 2004.

False Arrest/Imprisonment: No Warrant

     Deputies had probable cause to arrest woman's stepfather for disorderly conduct for yelling obscenities and other "fighting words" at her and her husband in the morning after being involved in a domestic dispute with them the evening before. Gower v. Vercler, No. 02-4112, 2004 U.S. App. Lexis 15281 (7th Cir.).

     Officers responding to domestic disturbance report had probable cause to arrest man for violation of New Jersey state firearms laws when they found that he possessed a handgun, that the gun was licensed in another state, and that he was a resident of another state. Bowser v. Borough of Freehold, #03-3386, 99 Fed. Appx. 401 (3rd Cir. 2004).

     There was probable cause to arrest a man in connection with a reported robbery at a convenience store after a clerk identified him as someone who had arrived and left in a vehicle with two other customers who threatened the clerk and displayed a handgun after the clerk refused to let them take cigarettes without paying. Lee v. Minute Stop, Inc., No. 1012303, 874 So.2d 505 (Ala. 2003).

     Officer had probable cause to arrest a woman when he entered a bingo hall and observed her fighting with another woman in the middle of a crowd of people. The officer could only act on what he knew, and did not have any knowledge as to which woman had initiated the fight, or whether the arrestee was at fault. His use of pepper spray to stop the fight was not an excessive use of force under the circumstances. Esters v. Steberl, No. 03-506, 93 Fed. Appx. 711 (6th Cir. 2004).

False Arrest/Imprisonment: Warrant

     Police officers could justifiably rely upon a "credible complaint" by an alleged student victim of sexual molestation by a teacher as probable cause for an arrest. The fact that the complainant was a "special education" student did not alter the result when the detective who prepared the affidavit for the arrest warrant found him credible. Forest v. Pawtucket Police Dept., No. 03-2652, 2004 U.S. App. Lexis 15527 (1st Cir.).

Firearms Related: Intentional Use

     Jury verdict awarding damages on the basis of officer's alleged unreasonable use of deadly force in shooting and killing a woman armed with two knives inside her house with family members upheld. Intermediate California appeals court, however, rules that city, while vicariously liable for officer's actions, could not be held liable on theories of inadequate training or supervision or other "direct negligence" theories, in the absence of a clear statutory duty which was breached. Munoz v. City of Union City, No. A095846, 2004 Cal. App. Lexis 1187 (Cal. 1st App. Dist.).

     Officer acted in an objectively reasonably manner in shooting and killing a suspect who had fired a gun at an officer, refused to lower his gun when ordered to do so, and then retreated into his home, where the officer feared he would pose an even greater threat to officers on the scene once he was out of sight. Elkins v. McKenzie, No. 2002-IA-00845-SCT, 865 So. 2d 1065 (Miss. 2003).

First Amendment

     Federal appeals court upholds denial of injunction to change a designated area for demonstrators at the 2004 Democratic National Convention in Boston, finding that the trial court's ruling was proper in light of security concerns. Bl(a)ck Tea Society v. City of Boston, No. 04-2002, 2004 U.S. App. Lexis 15778(1st Cir.).

Editor's Case Alert:

     An arrest of anti-abortion protesters for holding posters of mutilated fetuses was reasonable under a city ordinance making it unlawful to stand in a public place and hinder traffic, and a valid use of police power to protect public safety, and therefore did not violate the First Amendment. Arresting officers were entitled to qualified immunity. Frye v. Kansas City, Mo., No. 03-2134, 2004 U.S. App. Lexis 15366 (8th Cir. July 26, 2004)

Governmental Liability: Policy/Custom

     There was a genuine issue as to whether a city had a policy allowing the use of riot guns with wooden baton rounds before other less extreme means of crowd control were attempted, and whether the city had ratified an officer's alleged direct firing of a "knee knocker" wooden projectile at a student while attempting to disperse a crowd of partygoers who had gathered on a street. Trial court therefore denied summary judgment for the defendant city. Otero v. Wood, 316 F. Supp. 2d 612 (S.D. Ohio 2004).

Negligence: Vehicle Related

     Police officer was not acting with reckless disregard for others' safety when he struck another motorist's vehicle in an intersection while responding to a report of a disturbance. The officer was only traveling at 37 miles per hour, and had his blue lights and sirens activated, and there was no obstruction to the view of either the officer or the other motorist. The officer was therefore immune from liability under the Mississippi Tort Claims Act, A.M.C. Sec. 11-46-9(1)(c) which requires a showing of reckless disregard before imposing liability on a public employee engaged in the performance of police or fire protection duties. Davis v. Latch, No. 2003-CA-00511-COA, 873 So. 2d 1059 (Miss. App. 2004).

Off-Duty/Color of Law: Arrest Related

     Off-duty police officer serving as store security guard had probable cause for arrest of patron who was "loud and rude" in connection with discussion of dispute with store employee. Initial guilty finding in trial court on criminal charges conclusively proved that the officer had probable cause for arrest, barring a claim for malicious prosecution, despite the prosecutor's subsequent decision, when the arrestee appealed, to drop the charges. Sundeen v. Kroger, No. 03-386, 133 S.W.3d 393 (Ark. 2003).

Police Plaintiff: Firefighters' Rule

     A police officer's claim for personal injuries allegedly suffered while attempting to handcuff an arrestee who was swaying or staggering was barred by the professional rescuer's doctrine under Louisiana law. This doctrine states that a "professional rescuer" such as a police officer or firefighter who is injured in the performance of their duties assumes the risk of such injuries and cannot sue for damages. In this case, there was no claim that the arrestee was resisting arrest, and the officer was aware that the arrestee was drunk. The officer's injuries occurred when her knee struck the bumper of a car while she was trying to handcuff the arrestee. Gann v. Matthews, No. 2003 CA 0640, 873 So. 2d 701 (La. App. 1st Cir. 2004).

     Public-safety officer's rule barred a Rhode Island police officer's lawsuit against a homeowner for damages he suffered while running down the steps on the property after completing his inspection of the residence in response to the home's security alarm. The type of injury suffered was a foreseeable consequence of the officer's performance of his duty on the property. The officer, in running down the steps, was also responding to another emergency--a collision he saw which had occurred outside of the homeowner's property. Walker v. Prignano, No. 2003-631-Appeal, 850 A.2d 954 (R.I. 2004 ).

Police Plaintiff: Vehicle Related

     A driver who was convicted of criminal charges of attempted assault for attempting to back his vehicle into an officer was barred from re-litigating the question of his mental state in a personal injury lawsuit brought by the officer. Appeals court finds that the doctrine of collateral estoppel applied, and that the issue of whether the driver's conduct was intentional had been definitively decided in the criminal case. Carr v. Holt, No. ED 82626, 134 S.W.3d 647 (Mo. App. E.D. 2004).

Procedural: Evidence

     In a lawsuit against a town for the death of a motorist whose vehicle was struck by an officer's car, the nature of the call that the officer was responding to at the time was relevant to determining whether the officer acted in reckless disregard of the safety of others, and therefore was admissible. Allen v. Town of Amherst, 778 N.Y.S.2d 598 (A.D. 4th Dept. 2004).

Public Protection: Crime Victims

Editor's Case Alert:

     Police officers and city were not liable for death of woman accidentally shot by her husband as he also shot a man attempting to sexually assault her in their home. Officers' one-hour delay in entering the home after the shooting was not deliberately indifferent to the injured woman's need for medical attention, since they could reasonably believe that entering the home would be dangerous, knowing that the man who fired the shots was inside. Estate of Strumph v. Ventura, 849 A2d 105 N.J. Super. A.D. 2004).

Public Protection: Minors

     Police officer did not create a danger to a child by leaving her at a convenience store after allegedly mistakenly arresting her mother. The child was left with a responsible adult known to her family, and the child was not placed in any actual danger. Under the circumstances, the officer's actions in relation to the child were not objectively unreasonable. Craddock v. Hicks, 314 F. Supp. 2d 648 (N.D. Miss. 2003).

Public Protection: Rescue Situations

     Federal appeals court overturns jury verdict in favor of law enforcement defendants who allegedly interfered with the efforts of private persons to rescue a man who jumped into a river, and failed to offer a reasonable alternative rescue service. Court holds that "cumulative-error" doctrine should apply to civil cases, and that a new trial was required because of a number of evidentiary errors made by the trial court. Beck v. Haik, No. 01-2723 2004 U.S. App. Lexis 15590 (6th Cir.).

Public Protection: Witnesses

     City and police officer were not liable for murder of subpoenaed witness and her son allegedly by the brother of the suspect against whom the witness was to testify. The mere fact that the witness had been subpoenaed did not impose a duty to provide protection. The mere fact that some police protection was provided for a time and then subsequently withdrawn did not mean that the city created the danger to the witness. Clarke v. Sweeney, 312 F. Supp. 2d 277 (D. Conn. 2004 ).

Pursuits: Law Enforcement

     Lawsuit by parents of a motorcyclist who died in an accident while being pursued by a police officer was not a claim for intentional misconduct when plaintiffs asserted that officer purposefully bumped motorcycle to end the pursuit, as it was not claimed that the officer intended to injury the motorcyclist. The lawsuit was not, therefore, barred by the Texas state Tort Claims Act, V.T.C.A. Civil Practice & Remedies Code Sec. 101.021 Durbin v. City of Winnsboro, No. 06-03-00046-CV, 135 S.W.2d 317 (Tex. App. 2004).

Search and Seizure: Home/Business

Editor's Case Alert:

     Officers who allegedly failed to immediately terminate their search of a residence when they learned that they were in the wrong house were not entitled to qualified immunity from liability. Simmons v. City of Paris, Texas, No. 03-41291, 2004 U.S. App. Lexis 14946 (5th Cir.).

     County was entitled to summary judgment in lawsuit by elderly woman claiming that members of multi-agency task force improperly entered and searched her home looking for suspect who no longer lived there, when no county policy or custom caused the actions. Individual deputies involved in obtaining the address to go to or who accompanied team members on the search, were entitled to qualified immunity, as their actions did not violate plaintiff's rights. Johnson v. Deep East Texas Regional Narcotics Trafficking Task Force, No. 03-40394, 2004 U.S. App. Lexis 15493 (5th Cir.).

Search and Seizure: Search Warrants

     Students whose homes were searched and who were arrested for allegedly plotting an armed attack on their school failed to show that information allegedly intentionally omitted from affidavit in support of search warrant, had it been included, would have negated the existence of probable cause for the searches. The information which was allegedly omitted was not material. Additionally, the fact that an informant whose statements were relied on had prior juvenile convictions and had used drugs while with the five high school students who allegedly plotted the armed attack did not render the information he provided unreliable. Smith v. Barber, 316 F. Supp. 2d 992 (D. Kan. 2004).

Search and Seizure: Vehicle

     Officers had sufficient reasonable suspicion to stop a vehicle and request that the driver perform field sobriety tests after they observed a pickup truck weaving in its lane and straddling the dividing line on the highway. Blackstone v. Quirino, 309 F. Supp. 2d 117 (D. Me. 2004).

Access to Courts & ADR

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Editor's Case Alert:

     Federal court holds that an employer cannot rely on an e-mail sent to workers to justify the adoption of a policy exclusively substituting arbitration in place of judicial remedies. Campbell v. General Dynamics, 2004 U.S. Dist. Lexis 10552 (D. Conn. 2004).

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     Seventh Circuit holds that the promises an applicant makes in order to obtain employment, including the obligation to arbitrate Title VII discrimination claims, are enforceable. Oblix v. Winiecki, 2004 U.S. App. Lexis 13470 (7th Cir. 2004).

Arbitration Procedures

     Eighth Circuit holds that a fee-splitting clause does not make an arbitration agreement unconscionable and the courts must conduct a case-by-case review to see if the fees are prohibitive. Courts should sever any unreasonable cost-sharing clause and then compel arbitration. Faber v. Menard, 367 F.3d 1048 (8th Cir. 2004).

Arbitration Punishment Awards - Right of Courts to Interfere

     Ohio Supreme Court declines to review a 2-to-1 appellate court decision that reinstated a police officer because management only terminated one of two officers involved in the incident. City of Lima v. FOP, 2003 Ohio 6983; rev. den. 2004 Ohio 2263, 808 N.E.2d 398 (2004).

Civil Liability

     A county, the director of corrections, and internal investigators were entitled to have a suit for false arrest dismissed. The suit was filed by a corrections officer who alleged that probable cause was lacking because the female inmate, that brought a complaint of sexual misconduct, had a history of mental illness. Knowledge of a victim's psychiatric history "is not enough to destroy probable cause or strip officers of qualified immunity." Escalera v. Lunn, 361 F.3d 737 (2nd Cir. 2004).

Disability Rights and Benefits - Hearing procedures and appeals

     Although a pension board has the discretion to allow city attorneys to participate in a police officer disability hearing, absent a statute, a city does not have a right to participate or cross-examine witnesses. Vil. of Stickney v. Bd. of Tr. of Police Pension Fund, 807 N.E.2d 1078 (1st Dist. 2004).

Disability Rights and Benefits - Other Issues

     California Supreme Court rejects a mental disability retirement for a police officer that suffered allegedly retaliatory discipline and threats from fellow officers after he reported the use of excessive force by his coworkers. Nolan v. City of Anaheim, 2004 Cal. Lexis 5977 (Cal. 2004).

Disciplinary Appeals & Challenges - In General

     Arbitrator finds it is desirable to issue an advisory opinion in a disciplinary grievance appeal, even though case is not arbitrable because of time violations. City of Okmulgee and FOP L-96, 119 LA (BNA) 1227 (Robinson, 2004).

Disciplinary Hearings - Loudermill Rights

     Post-termination remedies, no matter how elaborate, do not relieve management of its obligation to provide a tenured police officer with minimal pre-termination due process. Montgomery v. City of Ardmore, 365 F.3d 926 (10th Cir. 2004).

Disciplinary Hearings - Proof Required

     Arbitrator finds that a county did not have just cause to discharge an employee who allegedly threatened to poison a coworker, where all of the evidence was hearsay and some of the statements were inconsistent. Lucas County, Ohio, and Auto. Workers L-12, 119 LA 1063 (Bordone 2003; rptd. 2004).

Disciplinary Interviews & Compelled Reports - Weingarten Rights

     A divided National Labor Relations Board reverses Epilepsy Foundation v. NLRB, a controversial ruling that extended Weingarten rights to employees that are not members of a bargaining unit. Nonunionized employees are no longer entitled, under Sec. 7 of the NLRA, to have a coworker accompany them to a disciplinary interview. IBM Corp. and Schult, 341 NLRB No. 148, 2004 NLRB Lexis 301 (NLRB 2004).

Disciplinary Offenses - In General

     Arbitrator reinstates supervisor who was fired for forwarding to a coworker, an e-mail containing payroll information. E-mail was not labeled as confidential. Port Auth. of Allegheny Co. and A.T.U. L-85, 119 LA (BNA) 1086 (Simmelkjaer, 2004).

Discovery, Publicity and Media Rights

     Incident reports prepared by police officers pertaining to the use of force are subject to production pursuant to the state's Freedom of Information Law. New York Civil Liberties Union v. City of Schenectady, 2004 N.Y. Lexis 1602 (N.Y. 2004).

Domestic Partner Rights

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Special Feature Article:

     Out-of-state same-sex marriages and officially-recognized domestic partnerships are likely to have legal and financial implications for public employers.

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FLSA - Overtime - in General

     "Tribal law enforcement clearly is a part of tribal government" and is exempt from overtime provisions in the FLSA. Snyder v. Navajo Nation, #02-16632, 2004 U.S. App. Lexis 11425 (9th Cir. 2004).

     City-county police officers that moonlighted as security officers for a city Housing Authority were not entitled to time and one-half overtime pay. The Housing Authority was a separate, not a joint employer. Johnson v. Shawnee Co. Bd. of Co. Cmsnrs, 2004 U.S. App. Lexis 11363 (10th Cir. 2004).

Family, Medical & Personal Leave

     A California law took effect in July that provides workers with as much as 55% of their pay while they take family leave. Maximum weekly payments are $728 in 2004 and $840 in 2005 and lasts up to six weeks. Another six weeks of unpaid leave is available. The program is financed by a 0.08% payroll tax that costs workers a maximum of $55 a year in family leave tax. Calif. Family Temporary Disability Insur. program, S.B. 1661 (enacted 2002; effective 7/7/2004).

Firearms - Restrictions on Wearing

     Subject to several limitations, the Congress has enacted a law to allow current and qualified retired law enforcement officers to carry a concealed firearm, and overrides any state legislation that restricts the new law. H.R. 218, to be codified as 18 U.S. Code § 926B and C (2004).

First Amendment Related

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Editor's Case Alert:

     Federal court in Connecticut refuses to grant injunctive relief to corrections officers facing disciplinary action for their membership in the Outlaws motorcycle gang. Piscottano v. Murphy, 317 F.Supp.2d 97 (D. Conn. 2004). Second Circuit holds that there was an insufficient connection between the adverse employment action suffered and the plaintiffs' protected speech to establish a retaliation claim under the First Amendment. Washington v. County of Rockland, 2004 U.S. App. Lexis 12845 (2d Cir. 2004).

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Fraternization with Coworkers - Prohibitions on

     Sixth Circuit overturns a verdict won by a former police officer that disobeyed the chief's order to stop dating a subordinate. Such rules prevent favoritism and sexual harassment complaints. Anderson v. City of LaVergne, 371 F.3d 879 (6th Cir. 2004).

First Amendment Related

     Second Circuit holds that there was an insufficient connection between the adverse employment action suffered and the plaintiffs' protected speech to establish a retaliation claim under the First Amendment. Washington v. County of Rockland, 2004 U.S. App. Lexis 12845 (2d Cir. 2004).

Grievance Procedures

     Grievance challenging the suspension of a police officer was properly filed with chief of police, even though the bargaining agreement stated it should be filed with the city manager or his designee; it was reasonable for the grievant to conclude that police chief was "designee" of the city manager. City of Okmulgee and FOP L-96, 119 LA (BNA) 1227 (Robinson, 2004).

Handicap Laws / Abilities Discrimination - Regarded as Disabled

     Eleventh Circuit overturns a $160,000 jury verdict for five partially-disabled police officers who were assigned to light duty and prevented from accepting moonlighting jobs. Their impairments did not substantially affect a major life activity, and although the city regarded them as disabled, the job of police officer is too narrow to qualify for relief under the ADA.. Rossbach v. City of Miami, 371 F.3d 1354 (11th Cir. 2004).

Injuries to Employees

     West Virginia gun store pays $1 million to settle a lawsuit brought by two Orange, N.J., disabled police officers who were shot by one of twelve guns sold in a "straw" sale. Lemongello v. Will Co., (Unpub., Kanawha Co., WV, Cir. Ct. 2004). The federal Jones Act, which protects seamen, does not apply to a riverboat casino that is securely moored and serves no transportation function. Martin v. Boyd Gaming, #03-30389, 2004 U.S. App. Lexis 14099 (5th Cir. 2004).

Past Practices, Precedents & Zipper Clauses

     Arbitrator holds that the city violated a past practice when management selected a less senior firefighter to fill a vacancy by transfer. Arbitrator also orders payment of overtime differential. City of Urbana and Urbana F/F Assn., 119 LA (BNA) 1078, FMCS Case No. 041202/01725/6 (Imundo 2004).

Pay Disputes - Overtime Claims

     Thousands of Justice Dept. attorneys' lost a class action suit for compensation because their overtime was not officially ordered or approved in writing as required by the Federal Employees Pay Act. Doe v. U.S., 372 F.3d 1347 (Fed Cir. 2004).

Privacy Rights

     The chief federal judge in Minnesota has ruled that parties who complain of violations of a written privacy policy must allege that they actually read the policy before submitting their personal information. An web-based privacy policy did not create rights for persons who did not actually read it. Airline passenger lists were given to federal security officials, at the government's request. In re Northwest Airlines Privacy Litig., 2004 U.S. Dist. Lexis 10580 (D. Minn. 2004).

Reductions in Force

     Court holds that only seniority within the affected department is relevant for reductions in force, unless layoffs are citywide. Town of East Hartford v. CSEA-MEU L-760 SEIU, 2004 Conn. Super. Lexis 1274 (Unpub. 2004).

Religious Discrimination

     Ninth Circuit rejects a wrongful termination action brought by a devout Christian who refused to remove a poster from his workplace, which quoted Biblical passages condemning homosexuality. An employer's duty to eliminate bias and intolerance prevails over a worker's individualized religious beliefs. Peterson v. Hewlett Packard Co., 2004 U.S. App. Lexis 72 (9th Cir. 2004).

Sexual Harassment - By Inmates in Correctional Facilities

     Second Circuit reinstates a hostile environment claim brought by women correctional officers, who alleged that management tolerated the circulation of two inmate letters that degraded them. Although a certain amount of lewd behavior is anticipated in a prison environment, the plaintiffs claimed that management inaction undermined their authority and made their job more dangerous. Dawson v. Co. of Westchester, 2004 U.S. App. Lexis 11595 (2d Cir. 2004).

Sexual Harassment - Verdicts, Settlements & Indemnity

     San Francisco suburb to pay almost $2 million in damages and legal costs to settle a sexual harassment suit brought by four women ex-officers, who claimed they suffered indignities, received different treatment and were denied promotional opportunities because of their gender. Wowak v. City of Sunnyvale, case dismissed; settlement reported at 174 Lab. Rltns. Rptr. (BNA) 466 (N.D. Cal. 5/6/04).

Union and Associational Activity

     Arbitrator holds that management was obligated to pay a union steward for time spent at a grievance meeting that ran past his normal work period, where the contract provided that a steward shall be granted reasonable amount of time, without loss of pay, to investigate and present grievances. Ohio Turnpike Cmsn. and Teamsters L-436, 119 LA (BNA) 1028 (Feldman, 2004).

Whistleblower Requirements and Protection

     Federal court dismisses a whistleblower action brought by a terminated FBI contract translator for the FBI. Although the plaintiff alleged 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).

Workers' Compensation - Claim Validity

     Although a city required its police officers to enforce the law at any time while in the city limits, an officer's injuries from a vehicle collision on her way to work did not "arise out of employment." Mayor and Aldermen of Savannah v. Stevens, 2004 Ga. Lexis 474, 2004 WL 1237149 (Ga. 2004).

Access to Courts/Legal Info

     Trial court abused its discretion when it first denied a plaintiff prisoner's motion to testify by deposition and then dismissed his lawsuit for want of prosecution based on the prisoner's failure to be present in court. The prisoner had also filed the appropriate motions to be allowed to come to the trial or in the alternative to have the trial at the prison, so that the judge's actions denied him equal access to the courts. McConico v. Culliver, #2020744, 872 So. 2d 872 (Ala. Civ. App. 2003).

     Federal appeals court rejects prisoner's claim that he was forced, during a modified lockdown following a prison riot, to choose between his constitutional right to regular outdoor exercise and his constitutional right of access to the courts. Evidence showed that, during the period in question, he had participated in between two to six hours of outdoor exercise per week, as well as managing to use the law library for a period of time sufficient to amend his complaint in one lawsuit, and to successfully file the lawsuit making the immediate claim. This showed that neither right was actually denied. Knight v. Castellaw, No. 03-16870, 99 Fed. Appx. 790 (9th Cir. 2004).

Criminal Conduct

     Federal appeals court upholds enhanced 46-month sentence imposed on correctional officer who pled guilty to conspiracy to violate the civil rights of jail detainees he was supervising, based on unusual vulnerability of prisoner with Tourette's syndrome to assault. The officer failed to show reversible error in the trial court's finding that he had knowledge of the prisoner's unusual vulnerability of Tourette's syndrome, and the trial court noted that, prior to the alleged beating of the prisoner, either the defendant or another officer was heard yelling, "we'll beat the Tourette's out of you." United States v. Donnelly, #03-2022, 370 F.3d 87 (1st Cir. 2004).

Defenses: Sovereign Immunity

     State of Texas was entitled to sovereign immunity against prisoner's claim for personal injury resulting from contact with a razor-wire fence surrounding a prison recreation yard. The presence of the razor wire there did not constitute either an "ordinary premises defect," or a "special defect" enumerated as an exception to sovereign immunity in the state's Tort Claims Act, V.T.C.A., Civil Practice & Remedies Code, Sec. 101.022. Retzlaff v. Texas Department of Criminal Justice, No. 01-02-00437-CV, 135 S.W.3d 731 (Tex. App. 1st Dist. 2003), rehearing denied March 4, 2004.

Drugs and Drug Screening

     New York inmate was properly found guilty of violating prison rules against unauthorized use of drugs, based on substantial evidence, including positive urinalysis test and supporting documentation. Prisoner was also properly found guilty of sexual misconduct based on testimony of correctional officer who witnessed the inmate's wife in the prison visiting room with her hand down inside the inmate's pants. Sanchez v. Selsky, 778 N.Y.S.2d 561 (A.D. 3d Dept. 2004).

Employment Issues

     State correctional officers were not entitled to a preliminary injunction against discipline of them for associating with Outlaws Motorcycle Club, a group alleged to be a criminal gang. The directive prohibiting officers from conduct constituting or giving rise to the appearance of conflict of interest, engaging in unprofessional or illegal behavior that could reflect negatively on the Department, and acting in ways jeopardizing institutional security or the health, safety, or welfare of the staff or inmates, which was the basis for the discipline, was not overbroad under the First Amendment. Piscottano v. Murphy, 317 F. Supp. 2d 97 (D. Conn. 2004).

False Imprisonment

     Five correctional employees allegedly responsible for continued incarceration of prisoner for 57 days after a court ordered him released were not entitled to qualified immunity from his federal civil rights lawsuit. A sixth employee, whose sole involvement was failing to investigate further when the prisoner returned from court without a required form, was granted qualified immunity by appeals court. Davis v. Hall, #02-3923 2004 U.S. App. Lexis 14385 (8th Cir.).

First Amendment

     Prison guard was not entitled to qualified immunity on the claim that he filed a false misconduct ticket against a prisoner in retaliation for his "jailhouse lawyering" activity. Law prohibiting such retaliation for exercise of First Amendment rights was clearly established. Scott v. Churchill, No. 03-2427, 2004 U.S. App. Lexis 15269 (6th Cir.).

     Federal appeals court overturns dismissal of prisoner's claim that confiscation of picture postcards from his cell might be violative of his First Amendment rights, in light of lack of evidence of the purported justification for the action. Injunction against policy preventing prisoner from receiving clippings from periodical from a correspondent upheld, but modified to clarify that the facility could still impose reasonable restrictions on the form and number of such clippings. Lindell v. Litscher, No. 03-2651, 2004 U.S. App. Lexis 14833 (7th Cir.).

Frivolous Lawsuits

     Prisoner's claim to recover damages for a sweat suit worth $25 allegedly negligently lost in federal prison laundry, brought under the Federal Tort Claims Act, was properly dismissed as frivolous. The amount of damages sought in a complaint pursued as a pauper, federal appeals court rules, is a factor which may be taken into consideration in making a determination of frivolity under the Prison Litigation Reform Act. Nagy v. FMC Butner, No. 03-6736, 2004 U.S. App. Lexis 15042 (4th Cir.).

     Prisoner's lawsuit against corrections officers was properly dismissed as frivolous. Prisoner was found to be a "vexatious litigant," and failed to provide the required information in an affidavit to the court concerning his past 22 lawsuits and detailing the facts for which relief was sought in those past lawsuits. Carson v. Walker, No. 07-01-0402-CV, 134 S.W.2d 300 (Tex. App. 2003).

Governmental Liability: Policy/Custom

     Inmate in New York correctional facility could not pursue federal civil rights lawsuit against county, county prosecutor, or county sheriff claiming that they violated his constitutional rights because they failed to prosecute correctional officers for allegedly threatening him on three occasions, in the absence of any allegation that the failure to prosecute was the result of any official policy or custom. Additionally, neither prosecutor nor sheriff were in a supervisory position within the prison hierarchy, and therefore did not have a duty to protect him from these alleged threats. Lewis v. Gallivan, 315 F. Supp. 2d 313 (W.D.N.Y. 2004).

Mail

     New York prisoner's claim that correctional employees deliberated tampered with his mail, including both incoming and outgoing legal, personal, and political mail, without cause or justification, adequately asserted a claim for violation of his First Amendment rights. Nash v. McGinnis, 315 F. Supp. 2d 318 (W.D.N.Y. 2004).

Marriage/Procreation

     While a prisoner had a fundamental constitutional right to marry, there was no duty on the part of a court clerk to travel to the prison to conduct a required oral examination to enable the prisoner to obtain a marriage license without personally appearing at the clerk's office, or to implement video conferencing so that the interview could be remotely conducted. In re Appeal of Coats, 849 A.2d 254 (Pa. Super. 2004).

Medical Care

     Florida Department of Health illegally repealed provisions of the state administrative code governing health and safety conditions in state correctional facilities by failing to comply with rule-making requirement that it identify the statute implemented by the repeal. Court also rejects Department's argument that state statutes imposed a duty on it to regulate conditions only in mental institutions, finding that it also has a duty to regulate prison conditions. Osterback v. Agwunobi, No. 1D03-1589, 873 So. 2d 437 (Fla. App. 1st Dist., 2004).

     A correctional facility in Connecticut is not an "other facility" which is subject to the requirements of a "patient's bill of rights" under state law, C.G.S.A. Sec. 17a-540(a). Accordingly, the rights given to patients under that statute to assist with the planning for their discharge from a hospital for psychiatric disorders do not apply when the patient being discharged is a convicted felon and is subject to a further period of incarceration. The estate of an inmate who died in a correctional facility could not, therefore, rely on alleged violations of the patient's bill of rights in seeking damages from the facility and its employees for failure to provide adequate and proper medical care, mediation, and supervision of the prisoner. Wiseman v. Armstrong, No. 16988, 850 A.2d 114 (Conn. 2004).

Prison & Jail Conditions: General

     Federal appeals court finds that Florida death row inmates' class action lawsuit claiming that high temperatures in their cells violated the Eighth Amendment prohibition on cruel and unusual punishment did not show the kind of "extreme" deprivations required for federal civil rights relief in a conditions-of-confinement lawsuit. Chandler v. Crosby, No. 03-12017, 2004 U.S. App. Lexis 16246 (11th Cir.).

Editor's Case Alert:

     Prison's policy of constant illumination of cell in administrative segregation unit was reasonably related to a legitimate interest in guard security, so that prisoner could not pursue his claim that it violated his rights under the Eighth Amendment because it deprived him of sleep. Chavarria v. Stacks, No. 03-40977, 2004 U.S. App. Lexis 14945 (5th Cir.).

Prison Litigation Reform Act: Consent Decrees

     Federal appeals court rejects challenges to consent decree requiring improvements to Puerto Rican prison conditions, including claim that the court's order violated the requirements of the Prison Litigation Reform Act. Court declines to order termination of consent decree requiring privatization of inmate health care, pointing to continuing serious problems. Feliciano v. Rullan, No. 04-1300, 2004 U.S. App. Lexis 16258 (1st Cir.).

Prison Litigation Reform Act: Exhaustion of Remedies

     California prisoner's lawsuit claiming that corrections officers assaulted him dismissed for failure to totally exhaust available administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a). Entire complaint dismissed when it contained a mixture of both exhausted and unexhausted claims, although prisoner could, if he wanted, file a new complaint concerning only claims on which he had exhausted administrative remedies. Mubarak v. California Department of Corrections, 315 F. Supp. 2d 1057 (S.D. Cal. 2004).

Prison Litigation Reform Act: Similar State Statutes

     A provision in the Wisconsin state Prison Litigation Reform Act, W.S.A. 814.25(2), which prohibits the award of costs against the state in lawsuits brought by inmates was not a violation of equal protection. State government could rationally decide that inmates who were prevailing plaintiffs should not be reimbursed for their costs from public funds since public funds already provide them with law libraries, paper, and pens to use to draft legal documents in lawsuits. State Ex Rel. Harr v. Berge, No. 03-2611, 681 N.W.2d 282 (Wis. App. 2004).

     For purposes of a requirement, in a Texas state Inmate Litigation Act, V.T.C.A. Civil Practice & Remedies Code Secs. 14.002(a) and 14.005(a, b), that a prisoner filed a civil lawsuit within 31 days after he exhausts available administrative remedies on a grievance, a prisoner's lawsuit is deemed to have been filed at the time that prison authorities receive the document for mailing, so long as it is properly addressed and stamped. Warner v. Glass, No. 03-0214, 135 S.W.3d 681 (Tex. 2004).

Prisoner Assault: By Inmates

Editor's Case Alert:

     Prisoner was properly awarded $820,000 in damages against county for failure to protect him from physical assault by another inmate who he had helped imprison by cooperating in law enforcement narcotics investigation. Federal appeals court rejects argument that damages were excessive, and upholds trial court's reduction of jury's prior award of $1,610,000. Rangolan v. County of Nassau, #03-7367, 370 F.3d 239 (2nd Cir. 2004).

Prisoner Death/Injury

     Ohio prisoner failed to prove that failure to grant his request for a bottom bunk assignment was the cause of the injuries he suffered when he fell and struck his head while attempting to climb into his top bunch, and therefore was not entitled to damages. Medical personnel at the facility had no indication that the prisoner had a need for a bottom bunk assignment because of a prior foot injury. Bell v. Ohio Dept. of Rehabilitation and Correct., No. 2002-06391-AD, 810 N.E.2d 467 (Ohio Ct. Cl. 2004).

Prisoner Discipline

     Trial court properly denied correctional employees qualified immunity on prisoner's due process claims that he was not provided with proper notice of the charges and the evidence relied on in connection with his prison disciplinary hearing, but should have granted them qualified immunity on prisoner's claim that evidence presented was insufficient to support a finding of guilt. Sira v. Morton, No. 03-0156, 2004 U.S. App. Lexis 15897 (2d Cir.).

     Prisoner who "laughed and clapped" while watching terrorist attacks on television on 9-11-2001, and then told another inmate that he saw their "chance to take this place," was properly found guilty of violating a prison disciplinary rule prohibiting rioting. Linares v. Goord, 778 N.Y.S.2d 550 (A.D. 3d Dept. 2004).

Prisoner Restraint

     Prisoner was properly awarded $1,500 in compensatory damages for allegedly being left in restraint chair for long periods of time, and $500 for alleged excessive use of force against him, but trial court properly did not award punitive damages in light of fact that the prisoner admitted disobeying orders, and that the facility had not developed policies governing the use of the restraint chair. Guerra v. Drake, #03-3137, 371 F.3d 404 (8th Cir. 2004).

Prisoner Suicide

     Federal appeals court reinstates claim against county sheriff for failing to protect detainee against risk of suicide after he learned that he had just made a suicide attempt at another jail from which he had been transferred. Sheriff allegedly failed to inquire into the details of this prior attempt and placed the prisoner in a cell with a bedsheet with which the prisoner successfully killed himself. The prior suicide attempt days before had also involved the use of a bedsheet. Turney v. Waterbury, No. 03-2375, 2004 U.S. App. Lexis 14811 (8th Cir).

     Prison psychiatrist and mental health worker did not act with deliberate indifference in returning prisoner, formerly found to be suicidal, to the general prison population, after which he successfully killed himself. The prisoner, at the time, appeared to have responded positively to the medication provided, and signed a contract in which he agreed not to hurt himself or others. The court finds that there was nothing from which the defendants could have inferred a strong likelihood that he would commit suicide at that time. Soles v. Ingham County, 316 F. Supp. 2d 536 (W.D. Mich. 2004).

Procedural: Discovery

     In a lawsuit by a New York prisoner seeking damages for injuries he suffered while operating router equipment in a prison work assignment, the court ruled that the "drastic remedy" of striking the State's answer to the prisoner's complaint was not justified by the State's failure to produce, in discovery, its accident report and the maintenance records for the router, but found that this was sufficient to support an inference that, if these records had been produced, they would have been unfavorable to the State. Gentle v. State of New York, No. 96927, 778 N.Y.S.2d 660 (Ct. Cl. 2004).

Search and Seizure: Guards/Employees

     Federal court upholds county jail employee search policy including random pat-down searches by same sex employees of "all areas" of the searched employee's body, including their abdomen and groin, and removal of outer clothing, belts, and shoes. Search policy was justified by a strong interest in preventing the introduction of contraband into the facility and by employee's diminished expectation of privacy on the job. Court also notes that the policy was applied uniformly to every employee and also to visitors at the facility who have contact visits with prisoners. Allegheny County Prison Employees Independent Union v. County of Allegheny, 315 F. Supp. 2d 728 (W.D.Pa. 2004).

Segregation: Administrative

     Prison officials were entitled to qualified immunity from inmate's claim that they violated his due process rights in deciding to keep him in administrative segregation. The record in the case showed that the prisoner was given an opportunity to present information to the committee which made the decision, and the committee regularly reviewed the prisoner's confinement every seven days during the first two months, and once a month after that. Torres v. Irvin, No. 02-0295, 99 Fed. Appx. 292 (2nd Cir. 2004).

Sexual Offender Programs

     Prisoner's loss of certain incentive privileges because he was removed from a sexual abuse treatment program did not violate any recognized liberty or due process right. Laubach v. Roberts, No. 91, 329, 90 P.3d 961 (Kan. App. 2004).

     Prisoner's Fifth Amendment privilege against self-incrimination was violated by sexual offender counseling program's requirement that he reveal his history of sexual conduct, including actions for which criminal charges could still be brought, or else lose good time credits. Defendant prison officials, however, were entitled to qualified immunity, as the law on the issue was not clearly established. Donhauser v. Goord, 314 F. Supp. 2d 119 (N.D.N.Y. 2004).

Smoking

     Prison officials involved in refusing to agree to prisoner's request that he be assigned to a non-smoking cell were not entitled to qualified immunity from his claim that this subjected him to a risk of serious damage to his future health, as well as present aggravation of respiratory problems. The prisoner's right, under these circumstances, not to be subjected to these risks was clearly established, and there was evidence that the prisoner was confined nineteen hours a day in a small, enclosed cell with a habitual smoker of cigars. Johnson v. Pearson, 316 F. Supp. 2d 307 (E.D. Va. 2004).

Visitation

Editor's Case Alert:

     Correctional policy denying a sex-offender contact visits with minors, including family members, did not violate his First Amendment right to freedom of association, and was rationally related to legitimate interests in promoting institutional security and the safety of children. Garber v. Pennsylvania Department of Corrections Secretary, 851 A.2d 222 (Pa. Cmwlth. 2004).

          Prisoner properly denied further visitation of inmate's fiancee to prison based on evidence that he sent money to her in exchange for heroin she allegedly conspired to bring into the facility. Correctional officials had reasonable grounds to believe that continued visits would have caused a serious threat to prison security. Substantial evidence also supported determination that prisoner was guilty of violating disciplinary rules against possession of money, promoting prison contraband, and smuggling. Encarnacion v. Goord, 778 N.Y.S.2d 562 (A.D. 3d Dept. 2004).