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of articles online at www.aele.org/law from the April 2002

Summaries from the April 2002

U.S. Supreme Court Actions

     U.S. Supreme Court unanimously upholds city ordinance requiring permits to hold more than 50-person events in a city park. Ordinance was utilized to deny a permit for a large gathering to advocate the legalization of marijuana, but was "content neutral," and therefore did not have to have First Amendment related procedural safeguards. Thomas v. Chicago Park District, No. 00-1249, 122 S. Ct. 775 (2002).

Administrative Liability: Supervision

     Evidence of supervisor's "direct participation" in arrest or gross negligence in supervising arresting officer was insufficient for submission to the jury; supervisor's mere presence in police headquarters and instructions to officer to "go handle" a developing problem between the plaintiff and the desk clerk was insufficient for liability. Court upholds jury's award, however, of $1 in nominal damages and $10,000 in punitive damages against arresting officer, based on evidence supporting argument that officer was not justified in believing that arrestee made "unreasonable noise" within the meaning of disorder conduct statute. Provost v. City of Newburgh, #00-7790, 262 F.3d 146 (2nd Cir. 2001).

Administrative Liability: Training

     Municipality could not be held liable for failure to train officers in the use of shotgun butts as a means of force in arrest situations. Policy that officers were to use only "reasonable and necessary force" was proper and the municipality was not required to "catalogue" every potential situation that might arise in a use of force context. Fromuth v. Metropolitan Government of Nashville, No. 3:99-0852, 158 F. Supp. 2d 787 (M.D. Tenn. 2001).

Assault and Battery: Physical

     Sheriff was not liable for failure to "implement a policy for the handling of physical humor" based on alleged assault by deputies, including beating and pepper spraying of handcuffed arrested motorist who claimed that his licking of a state trooper's face was meant as a joke; deputies involved in alleged beating, however, were not entitled to qualified immunity, as their alleged actions were not objectively reasonable. Small v. St. Tammany Parish, No. 00-3441, 2001 U.S. Dist. Lexis 21809 (E.D. La.).

     Deputy sheriff did not use excessive force when he inadvertently broke an intoxicated and combative arrestee's nose while trying to subdue him. Intoxicated arrestee had called 911 and asked to be taken to jail. Jones v. Buchanan, No. 1:00CV-27-C, 164 F. Supp. 2d 734 (W.D.N.C. 2001).

Defenses: Governmental Immunity

     Officer working for water supply district would not be entitled to governmental immunity under Mississippi Tort Claims Act, Secs 11-46-5(2), 11-46-7(2) if he acted with malice in using excessive force in effecting arrest of plaintiff for drunkenness and resisting arrest on district property. Bridges v. Pearl River Valley Water Supply District, No. 2000-CA-00128-SCT, 793 So. 2d 584 (Miss. 2001).

False Arrest/Imprisonment: No Warrant

     Officers were not entitled to qualified immunity on claims that they made a suspected trespasser get into their patrol car, drove him several miles outside of the city limits and then left him there after throwing his shoes into the woods, warning him that he had a "long walk" home and should consider "moving" to another city. Sampson v. City of Schenectady, 160 F. Supp. 2d 336 (N.D.N.Y. 2001).

     Railroad police officer did not violate arrestee's Sixth Amendment rights by failing to inform her of the nature and basis of the accusation against her when he handcuffed her and detained her on platform of train station. Sixth Amendment rights are not triggered until the government has "committed itself to prosecution," and here the arrestee was ultimately not even removed from the place of her arrest to the police station, but instead released when another passenger was identified as the real offender. Spencer v. National R.R. Passenger Corp., No. 99-C-8506, 141 F. Supp. 2d 1147 (N.D. Ill. 2001).

     The arrestee's convictions at trial for disorderly conduct, battery on an officer, and fleeing arrest conclusively established that the officer had probable cause for the arrest, even though the disorderly conduct and fleeing arrest convictions were overturned on appeal. McGregor v. City of Olathe, Kansas, 158 F. Supp. 2d 1225 (D. Kan. 2001).

     Police officer acted unlawfully in seizing arrestee, even if he appeared "lost and confused," when an encounter did not result in any reasonable basis for seizure or detention and arrestee had exercised his right to end the voluntary encounter by walking away. "A lost or confused individual is just as entitled to walk away from a police officer as is an individual who" knows "where he is, why he is there, and what he wants to do." A perceived threat to the officer after he had already unlawfully seized the plaintiff who was trying to walk away could not be used to justify the initial seizure. Jacobs v. Village of Ottawa Hills, 159 F. Supp. 2d 693 (N.D. Ohio 2001).

     Police officer who arrived on the scene after the arrestee had already been detained and subdued was justified, for purposes of probable cause, in relying on information provided by other officers in preparing a written arrest report and signing two felony complaints against the arrestee. He was therefore not liable for an alleged violation of the arrestee's rights. Scott v. Sinagra, 167 F. Supp. 2d 509 (N.D.N.Y. 2001).

False Arrest/Imprisonment: Warrant

     Officers had probable cause to arrest, with warrant, man for criminal sexual assault of a child based on purported victim's statements, bloodstains in victim's underwear, medical evidence consistent with sexual abuse, and evidence indicating that the arrestee was the only adult interacting with children at the scene. Later dismissal of charges, based on rulings suppressing minor's identification of him as "suggestive and unreliable," and preventing the state from using certain hearsay statements attributed to minor in the course of the investigation did not alter the result. Predmore v. Schwartz, No. 99-3198, 141 F. Supp. 2d 1150 (C.D. Ill. 2001).

     Officers who arrested plaintiff with a facially valid warrant had no obligation to investigate or accept arrestee's claim that the warrant described another person with the same name. Sheriff's office did not know arrestee's date of birth, social security number or other identifying information on the date of the arrest. Deputy later took steps to secure arrestee's release when it became apparent that he was not the person sought in the warrant. Garcia v. County of Bucks, Pa., No. CIV. A. 00-2446, 155 F. Supp. 2d 259 (E.D. Pa. 2001).

Firearms Related: Intentional Use

     Shooting and killing of suicidal individual armed with a shotgun who had only pointed his weapon at himself would have been unreasonable if he stopped advancing on officers at the time he was shot, but trial court must still determine whether the law on that subject was clearly established at the time of the incident in order to rule on officer's defense of qualified immunity. Bennett v. Murphy, #00-2667, 274 F.3d 133 (3rd Cir. 2001).

     Genuine issue of fact as to whether intoxicated suicidal person armed with a knife was "lunging" at officers when they shot and killed him or merely "leaning forward" barred summary judgment for officers in wrongful death lawsuit. Prior v. Pruett, No. COA00-415, 550 S.E.2d 166 (N.C. App. 2001).

Firearms Related: Negligence

     Jury awards $35.5 million against town for failure to destroy assault rifle turned into department; weapon was instead issued to officer who took it home and kept it in gun cabinet which his son had access to; son used weapon to kill two Border patrol agents and injury a deputy sheriff. Salinas v. City of Harlingen, No. B-98-162, U.S. District Court, (S.D. Texas), reported in The National Law Journal, p. A6 (March 4, 2002).

Governmental Liability: Policy/Custom

     Single incident of alleged excessive use of force by officers while making arrest did not show that the county had a policy or widespread custom of excessive use of force. Plaintiff's own statement concerning a single prior incident involving him, and his assertion that the county officers "have a reputation" for excessive use of force was insufficient to assert a claim. Williams v. Prince George's County, Md., No. Civ. A DKC 2000-184, 157 F. Supp. 2d 596 (D. Md. 2001).

     Arresting officer's testimony that he was subsequently fired from his job for not writing enough tickets, even if true, was not "closely related" to plaintiff arrestee's claim that the city had an official policy or custom of using excessive force against arrestees or of ignoring citizen complaints about policy. Plaintiff's own statement that the mayor "was aware" of police officer's alleged "reign of terror" because he was the mayor, was insufficient to allow claims against the city to proceed. Outlaw v. Nasworthy, No. A01A0199, 551 N.E.2d 785 (Ga. App. 2001).

Interrogation

     "Coercive" questioning of suspect with "limited intellectual capacity" which allegedly elicited false confession to murder could violate suspect's Fifth Amendment rights despite reading of Miranda rights; officers were not entitled to qualified immunity on claim that they then knowingly used "false or unreliable" evidence to secure suspect's conviction for murder. Wilson v. Lawrence County, Mo., #00-2828, 260 F.3d 946 (8th Cir. 2001).

     An officer did not violate a motorist's rights or impermissibly "detain" her following a stop for speeding when he asked her "what she believed law enforcement was doing about the war on drugs." Motorist was free to go and it did not violate her rights to attempt to start a conversation with her. Officer also did not violate her rights by later walking drug sniffing dog around the car when his suspicions were aroused by her responses. U.S. v. Morgan, #00-1965, 270 F.3d 625 (8th Cir. 2001).

Negligence: Vehicle Related

     Jury awards $5 million to waitress/motorist hit by police car when returning from work. Police vehicle is alleged to have been traveling at twice the posted speed limit without activated siren or emergency lights. Jury rejects defense argument that plaintiff was intoxicated based on blood alcohol test, when witnesses testified she looked sober and plaintiff argued test results were caused by breathing distress and trauma of the accident. Krall v. City of Des Plaines, No. 00L4096 (Cook County, Illinois Cir. Court), reported in The National Law Journal, p. B4 (Feb. 18, 2002).

Off-Duty/Color of Law

     Officer did not act "under color of state law" in allegedly going "beyond the bounds of civility" in a private contract dispute with a contractor who had done work on his home. Even if contractor's allegations were true that officer had terrorized, assaulted, discriminated against, and tried to "ruin" him, this could not be the basis for a federal civil rights lawsuit since the officer acted off-duty, for purely private motives, and did not use police equipment or authority in carrying out his actions. Garner v. Wallace, No. 9:00-CV-181, 139 F. Supp. 2d 801 (E.D. Tex. 2001).

Police Plaintiff: Defamation

     Police officer could not sue church, pastor, and their attorney for defamation based on attorney's letter threatening legal action against the officer for defamation because of statements officer had made during an investigation. Absolute privilege protects such letters sent in "contemplation" of judicial proceedings, even when the claim asserted was later abandoned. Bell v. Lee, No. 04-00-00011-CV, 49 S.W.2d 8 (Tex. App. 2001).

Property

     Jury properly awarded $10,000 for living expenses and $15,000 for pain and suffering to woman wrongfully evicted from the residence that she owned based on deputy's interpretation of a temporary restraining order her estranged husband had obtained. Cozzo v. Tangipahoa Parish Council-President Government, #00-30104, 279 F.3d 273 (5th Cir. 2002).

Property

     Sheriff and his deputies did not act unreasonably in enforcing a judicial order allowing an estranged husband to remove his property from the marital residence occupied by his wife during pending divorce proceedings when order was facially valid. Alleged fraud on the court and sheriff by the husband's attorney did not alter the result. Nicholson v. Moates, 159 F. Supp. 2d 1336 (M.D. Ala. 2001).

Public Protection: Intoxicated Persons

     Officers did not violate a detainee's Fourth Amendment rights when they extended their investigation because of concerns that he was intoxicated and might be a threat to himself or others. Failure to do so, indeed, might have made the officers derelict in their "community caretaking function." Winters v. Adams, #00-3061, 254 F.3d 758 (8th Cir. 2001).

Racial/National Origin Discrimination

     Arrested taxi passenger's claim that arresting officers "were apparently prejudiced against" his Iranian nationality and therefore "treated him inferiorly" was a "mere bald assertion and conclusory statement" which failed to state a claim for national origin discrimination. State troopers had probable cause for warrantless misdemeanor arrest of passenger for allegedly cutting taxi seat with a sharp object he was in possession of, but were not entitled to qualified immunity on excessive force claim that they dragged him in handcuffs across the floor when he had not resisted arrest. Tavakoli-Nouri v. State of Maryland, No. 0048, 779 A.2d 992 (Md. App. 2001).

Search and Seizure: Home/Business

     Jury properly awarded woman $7,500 in damages for forced warrantless entry into her home by two deputies who were accompanying social workers on a "child welfare check" concerning why the woman's son had not been in school. Homeowner informed officers that the child was not present and there was nothing they observed which would justify an "emergency" exception to the warrant requirement for entry. Chavez v. Board of County Commissioners of Curry County, No. 21,066, 31 P.3d 1027 (N.M. App. 2001).

     Search of man's residence under warrant was not rendered unreasonable because it was conducted while his children waited for the school bus outside the home, in the absence of any claim that the officers harmed or threatened the children in any way. Handcuffing of man for two hours while they searched his home under the warrant did not violate his Fourth Amendment rights, particularly when they also arrived armed with an arrest warrant. Martin v. Rodriguez, 154 F. Supp. 2d 306 (D. Conn. 2001).

Search and Seizure: Vehicle

     Motorist and his wife were entitled to nominal damages for unreasonable detention and search of their vehicle during a traffic stop, but could not be awarded damages for injuries that resulted from the discovery of incriminating evidence during the search and from the motorist's time in custody on charges of unlawful possession of the weapons and narcotics found during the search. Padilla v. Miller, 143 F. Supp. 2d 479 (M.D.Pa. 2001).

Sexual Assault & Harassment

     Female motorist arrested after vehicle accident stated a claim for sexual harassment against officer who allegedly sat in the back seat of the patrol car with her during the ride to the police station, engaging in "inappropriate" touching and sexual propositions; no reasonable officer could believe that the alleged conduct did not violate the arrestee's rights under the Fourth Amendment. Fontana v. Haskin, #99-56629, 262 F.3d 871 (9th Cir. 2001).

Strip Search

     Update: Judge declines to impose $129,750 damage award suggested by advisory jury in lawsuit brought over "humiliating" strip search of beautician conducted at airport by U.S. Customs agents after drug dog alerted to her. Kaniff v. U.S., No. 99C-3882 (U.S. Dist. Ct. N.D. Ill. March 8, 2002).

Arbitration Procedures

     Supreme Court holds that an agreement to arbitrate all employment disputes does not preclude the EEOC from filing a damage suit in behalf of the employee. EEOC v. Waffle House, #99-1823, 122 S.Ct. 754, 2002 U.S. Lexis 489 (2002).

     Ninth Circuit rules that if a union fails to bring a lawsuit to compel the arbitration of a grievance, following an employer refusal to process that grievance, the employee can bring a lawsuit directly against the employer. Sidhu v. The Fletco Co., #00-15567, 279 F.3d 896, 2002 U.S. App. Lexis 1720 (9th Cir. 2002).

Attorneys' Fees and Legal Defense Rights

     The New Jersey Supreme Court has ruled that public officials may not terminate a lawyer who serves a fixed term or who cannot be removed except for cause. Coyle v. Board of Chosen Freeholders of Warren County, #A-110 Sept. Term 2000, 170 N.J. 260, 787 A.2d 881, 2002 N.J. Lexis 1 (2002).

     A self-insured governmental entity is not an "insurer," and its agreement to indemnify employees for claims arising in the course and scope of their employment is not insurance; thus, such an entity is not bound by a state insurance requirement that the insured's consent be obtained before settling a lawsuit against the insured. Chambi v. Regents of the Univ. of Cal., #G024554, 95 Cal. App. 4th 822, 116 Cal. Rptr. 2d 50, 2002 Cal. App. Lexis 288 (Cal.App. 4th Dist. 2002).

Collective Bargaining - Duty to Bargain

     Ninth Circuit overturns the Federal Labor Relation's decision to order the Dept. of Interior to bargain with the union over premium pay. The issue of "Sunday premium pay" was not properly preserved for bargaining. Dept. of Interior v. FLRA, #00-70862, 279 F.3d 762, 169 LRRM (BNA) 2333, 2002 U.S. App. Lexis 1251 (9th Cir.)

Criminal Liability

     Four of six former police officers in Alabama have pled guilty to racketeering, extortion, and possession of crack cocaine. Officers took money from detained suspects and kept it, rather than initiate forfeiture proceedings. U.S. v. Stallworth et al (S.D. Ala. 2002). DoJ Press Release CR 02-005.

Death Benefits

     Supreme Court declines to review an appellate holding that rejected federal death benefits for the widow of a police officer who killed himself due to job-related stress. Yanco v. U.S., #00-5058, 258 F.3d 1356 (Fed. Cir. 2001); rev. den., #01-674, 122 S. Ct. 921, 2002 U.S. Lexis 530 (2002).

Disciplinary Discovery

     Federal court in Philadelphia allows a terminated officer to view disciplinary records of coworkers to prepare his discriminatory discipline lawsuit. Court enters a protective order to preserve the privacy of those whose files were sought. Morrison v. Philadelphia Housing Auth. Police, #00-2847, 203 F.R.D. 195, 2001 U.S. Dist. Lexis 11272 (E.D. Pa.).

     Federal court in Kansas orders discovery of five years of I-A dispositions in a suit by two officers who allege they were disciplined in retaliation for their free speech. Beach v. City of Olathe, #99-2210-GTV, 203 F.R.D. 489, 2001 U.S. Dist. Lexis 16215 (D. Kan.).

Disciplinary Evidence - In General

     The fact that the plaintiff's supervisor was under pressure to "get rid" of him was insufficient to prove his claim that he was terminated in retaliation for exercising his First Amendment rights. Vukadinovich v. Bd. Trustees, #01-1625, 278 F.3d 693, 18 IER Cases (BNA) 385, 2002 U.S. App. Lexis 849 (7th Cir. 2002).

Disciplinary Hearings - Untenured

     Federal appeals court declines to set aside a damage award for a police lieutenant who was fired, without a hearing, on bogus sexual misconduct charges. Speer v. City of Wynne, #00-3776, 276 F.3d 980, 2002 U.S. App. Lexis 552 (8th Cir. 2002).

     Appeals court concludes that an 8-month period between a suspension without pay and his subsequent reinstatement was not adequate to prevent liability for denying an officer a pre-deprivation hearing. McDonald v. City of Dayton, #18721, 2001 Ohio App. Lexis 5150, 18 IER Cases (BNA) 125 (Ohio App. 2d Dist. 2001).

Disciplinary Punishment - In General

     Appellate court in New Orleans articulates the role of a civil service commission in reviewing the punishment that has been imposed by the chief of a department. Shepack v. New Orleans Police Dept., 2000-CA-1345, 791 So.2d 733, 2001 La. App. Lexis 1593 (La.App. 4 Cir., 05/16/01)

     A news wire service has reported that a police lieutenant and another father have been banned from Arapahoe County, Colorado, youth hockey games after a weekend brawl involving 30 parents. The officer and two other parents were reportedly cited for misdemeanor disorderly conduct after a Jan. 27, 2002 game.

Disciplinary Punishment - Disparate Treatment

     Federal appeals court affirms the termination of an unmotivated black trooper who failed to spell correctly, even though he was not given remedial tutoring but an unsuccessful white trooper was tutored. Kidd v. Illinois State Police, #97-2835, 2002 U.S. App. Lexis 724 (Unpublished order, 7th Cir.), affirming 138 F.Supp.2d 1047, 2001 U.S. Dist. Lexis 8162 (N.D. Ill. 2001).

Disciplinary Searches

     Fourth Circuit holds that FBI agents could not rely on a roommate's consent to search password-protected files in a computer they shared his password-protected computer files. Trulock v. Freeh, #00-2260, 275 F.3d 391, 2001 U.S. App. Lexis 27341 (4th Cir. 2001).

Family, Medical & Personal Leave

     A telephone message from an employee who said she was suffering from "depression again" may have given the employer sufficient notice to trigger FMLA leave. Spangler v. Fed. Home Loan Bank, #01-2476, 278 F.3d 847, 7 WH Cases 2d (BNA) 1036, 2002 U.S. App. Lexis 1249 (8th Cir. 2002).

Fair Labor Standards Act - Overtime & In General

     Federal court dismisses a suit by California state corrections officers seeking damages against their superiors, in their individual capacities for failing to timely pay retroactive overtime pay increases. The court held that managers were not "employers" under the FLSA, and even if they were, sovereign immunity applies because the state was the real party in interest. Baird v. Kessler, #S-00-1619, 172 F.Supp.2d 1305, 2001 U.S. Dist. Lexis 19106 (E.D. Cal. 2001).

Fair Labor Standards Act - Standby Time

     Arbitrator denies an overtime claim to an officer who was ordered to wear a pager while waiting to be called to court. City of Washington and FOP, FMCS #01/13235, 116 LA (BNA) 686 (Szuter, 2001).

First Amendment Related

     A Chief Deputy Probation Officer, who claimed retaliation after he filed a discrimination lawsuit, did not suffer any "adverse personnel action" when his superior limited his duties. "... minor shifts in employment responsibility did not significantly alter the conditions of [the plaintiff's] employment." Duffy v. McPhillips, #01-1747, 276 F.3d 988, 87 FEP Cases (BNA) 1461, 2002 U.S. App. Lexis 554 (8th Cir. 2002

Fringe Benefits

     Federal agencies now have discretionary authority to use appropriated funds or funds otherwise available to the agency to pay for (1) expenses for qualified employees to obtain professional credentials (including professional accreditation, state-imposed and professional licenses, and professional certifications) and (2) for examinations to obtain professional credentials. Confidential, policy-making, and policy-advocating positions are excepted from this benefit. P.L. 107-107 § 1112 (2001) will be codified at 5 U.S. Code §5757.

Handicap Laws / Abilities Discrimination - Regarded as Disabled

     Under the ADA, a NYPD officer with a need to take the anticoagulant Coumadin, was regarded as unable to work as a full-duty patrol officer. He is not per se impaired from working as a law enforcement officer in either the public or private sectors. Giordano v. City of N.Y., #01-7370, 274 F.3d 740, 2001 U.S. App. Lexis 27137 (2d Cir.).

Health Insurance

     An employer complies with its duty under COBRA, 29 U.S. Code §1161-1169, by sending a letter to an individual's last known address by certified mail, even when the employer knows that the individual did not actually receive the letter. Degruise v. Sprint, #00-31320, 279 F.3d 333, 2002 U.S. App. Lexis 1116 (5th Cir. 2002).

Military Leave

     In granting 15 "days" of paid military leave a year, the Indiana Legislature intended to treat all public employees equally. Management's policy of paying up to 120 hours of military leave per year, regardless of shift length, treated all public employees the same; management definition of "day" as 8 hours did not conflict with state law or treat unfairly firefighters who work 24 hours on, 48 hours off. Koppin v. Strode, #49A02-0103-CV-148, 761 N.E.2d 455, 2002 Ind. App. Lexis 29 (Ind. App. 2002).

     Federal agencies now have discretionary authority to pay both the employee and Government health benefit contributions, for up to 18 months, for employees called to active military duty for more than 30 consecutive days. Agencies may make retroactive payments back to Dec 8, 1995. P.L. 107-107 §519, codified at 5 U.S. Code §8906 (2001). Section 563 also amended 5 U.S. Code §6323(a)(1) to permit federal employees to use their 15 days of military leave for "funeral honors duty" as described in 10 U.S. Code §12503 and 32 U.S. Code §115.

National Origin Discrimination

     U.S. Dept. of Justice issues Guidance to avoid national origin discrimination, and warns that "English Only" laws offer no protection from liability. Guidance to Federal Financial Assistance Recipients Regarding Title VI: Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 66 (10) Federal Register 3833-3848 (Jan. 2001).

     The U.S. Dept. of Justice brochure, "Federal Protections Against National Origin Discrimination," is now available in 11 foreign languages: Arabic, Cambodian, Chinese, French, Haitian Creole, Korean, Laotian, Spanish, Russian, Tagalog (Philippines) and Vietnamese.

Past Practices, Precedents & Zipper Clauses

     The mere fact that one employee obtained leave for a year does not establish that the employer has a general policy of unlimited leave, and it was error to conclude that the employer acted out of anti-union animus, in light of the absence of such a policy. Sasol v. NLRB, # 00-1525, 275 F.3d 1106, 2002 U.S. App. Lexis 201, 169 LRRM (BNA) 2152 (D.C. Cir. 2002), reversing 2000 N.L.R.B. Lexis 813, 332 N.L.R.B. No. 117 (2000), sub nom Condea Vista Co.

Pay Disputes - In General

     212,000 current and former "special salary rate" federal employees, who worked between 1982 and 1988, will share more than $173 million in back pay under a class action settlement. Most awards will be in the $1,000 to $3,000 range, but some workers may recover as much as $30,000. NTEU v. King, #96-1263, 132 F.3d 736, 1998 U.S. App. Lexis 17 (Fed. Cir. 1998); NTEU v. Horner, #87-1506, 869 F.2d 571 (Fed. Cir. 1989).

Political Activity/Patronage Employment

     Second Circuit upholds a $400,000 award against a sheriff and chief deputy who repeatedly mistreated a deputy who had supported an opposition candidate. Phillips v. Bowen, #00-7525, 278 F.3d 103, 2002 U.S. App. Lexis 980, 18 IER (BNA) 397 (2nd Cir.2002).

Race Discrimination

     A District Court properly decertified an attempted class action of rejected police applicants, where the plaintiff failed to adequately pursue the litigation. Culver v. City of Milwaukee, #01-1555, 277 F.3d 908, 87 FEP Cases (BNA) 1464, 2002 U.S. App. Lexis 614 (7th Cir. 2002).

Race and Sex Discrimination

     State parole officer's race and sex discrimination claims were time-barred; the court rejected her continuing violation claims. Weeks v. New York St. Div. of Parole, #00-0211, 273 F.3d 76, 2001 U.S. App. Lexis 23586, 87 FEP Cases (BNA) 161 (2nd Cir. 2001).

Residency Requirements

     Arbitrator sustains an officer's dismissal. His claim that a farmhouse was a second home and that he and his wife shared a condo with his mother-in-law was not credible. Although five or six surveillances, over a three-month period, were not enough proof, a statement from the in-law and various documents proved the city's case. City of Columbus and FOP L-9, FMCS Case #00/01343, 116 LA (BNA) 586 (Kohler, 2001).

Retirement Rights and Benefits

     The Supreme Court has declined to review a Court of Appeals holding that U.S. Navy base police officers were entitled to the early retirement privileges as other federal LEOs. Watson v. Dept. of Navy, #01-725, 122 S.Ct. 817, 2002 U.S. Lexis 279 (cert. denied 2002); appellate decision at 262 F.3d 1292 (Fed. Cir. 2001).

Sex Discrimination - In General

     A Fire District's refusal to accommodate a woman firefighter's educational requests, while accommodating similar requests by male firefighters, could have made her job intolerable -- supporting a constructive discharge claim. Rhyce v. Martin, #00-2623, 173 F.Supp.2d 521, 2001 U.S. Dist. Lexis 4963 (E.D. La. 2001).

Sexual Harassment - In General

     Management, in separating a complaining employee from a harassing coworker, took reasonable steps to prevent future harassment, even if the offending employee later harasses another employee. Longstreet v. IL Dept. of Corr., #01-1849, 276 F.3d 379, 2002 U.S. App. Lexis 567, 87 FEP Cases (BNA) 1375 (7th Cir. 2002).

     The New Mexico Dept. of Public Safety has agreed with the Justice Dept. to implement new policies governing sexual harassment, racial harassment and retaliation. The court-approved agreement ends a DoJ lawsuit, arising out of an EEOC charge of sexual harassment, filed by former State Police Lieutenant. U.S. v. New Mex. D.P.S. (D.N.M. 2001); DoJ Press Release No. 01-541.

     Federal appeals court reverses the dismissal of a woman police officer's sexual harassment claims for a purported failure to exhaust her administrative remedies; new trial ordered. B.K.B. v. Maui Police Dept., #99-17087, 276 F.3d 1091, 2002 U.S. App. Lexis 276, 87 FEP Cases (BNA) 1306 (9th Cir. 2002).

Untruthfulness & Resume Fraud

     A divided federal appeals panel affirms the termination of an FBI agent who, during the I-A interview, significantly understated the number of times he had misused a Bureau vehicle. It was unnecessary to prove an intent to deceive his superiors. cards). Ludlum v. Dept. of Justice, #01-3093, 278 F.3d 1280, 2002 U.S. App. Lexis 1128 (Fed.Cir. 2002).

Vehicle Related

     G.S.A. now matches the I.R.S. private vehicle reimbursement or tax-deduction rates of 36½ cents per mile, effective 1 Jan. 2002. Source: 40 (1944) G.E.R.R. (BNA) 90.

Whistleblower Requirements and Protection

     The Seventh Circuit has held that county or municipality may be sued as a "person" under the False Claims Act, 31 U.S. Code 3729 et seq. U.S. ex rel. Chandler v. Cook County, #00-4110, 277 F.3d 969, 2002 U.S. App. Lexis 847 (7th Cir. 2002).  The Third Circuit disagrees, and has ruled that county and city governments cannot be sued under the False Claims Act because the mandatory treble damages provision is "punitive" in nature and public entities are immune from punitive damages. The U.S. Dept. of Justice, in an amicus brief, supported the claim of the whistleblower-plaintiff in this case. U.S. ex rel. Dunleavy v. Co. of Delaware, #00-3691, 297 F.3d 219, 2002 U.S. App. Lexis 1214 (3rd Cir. 2002).

Workers Compensation - Exclusive Remedy

     California appellate court holds that a workers comp. claim is the exclusive remedy for an off-duty employee, who was injured in her employer's workplace. Wright v. Beverly Fabrics, #F035445, 95 Cal. App. 4th 346, 115 Cal.Rptr.2d 503, 02 C.D.O.S. 529, 2002 Cal.App. Lexis 448 (5th Dist. Cal. App.).

U.S. Supreme Court Actions

     Unanimous U.S. Supreme Court rules that "exhaustion of remedies" requirement of Prison Litigation Reform Act applies to all lawsuits by inmates about prison life, including those involving particular incidents, such as an allegation of excessive use of force by a correctional officer, as well as those that involve general circumstances or conditions. Porter v. Nussle, 2002 U.S. Lexis 1373.

     Civil commitment of previously convicted sex offender require some finding of the offender's "lack of control." Kansas v. Crane, #00-957, 122 S. Ct. 867 (2002).

Access to Courts/Legal Info

     Pretrial detainees who challenged city jail regulations they claimed had an adverse impact on their Sixth Amendment right to counsel by impeding attorney visits did not have to show an "actual injury" in order to be entitled to injunctive relief. While prisoners must show such actual injuries when complaining about allegedly inadequate law libraries or legal assistance programs, there is no independent constitutional right to access to them, as opposed to access to attorneys. Benjamin v. Fraser, #00-9093, 264 F.3d 175 (2nd Cir. 2001)

Attorneys' Fees

     A prisoner who was only awarded $1 in nominal damages in his excessive force lawsuit against a correctional officer was limited by the Prison Litigation Reform Act to a maximum award of attorneys' fees of $1.50; federal appeals court upholds statutory limit against equal protection argument. Foulk v. Charrier, #00-1132, 262 F.3d 687 (8th Cir. 2001).

Defenses: Eleventh Amendment Immunity

     Connecticut state Department of Corrections was immune from a state prisoner's federal civil rights lawsuit for alleged violation of his Eighth Amendment right to be free from deliberate indifference to his medical needs, but a state statute, C.G.S.A. Sec. 4-165, that provides personal immunity for state employees could not be used to shield them from claims for violation of federal law. Torrence v. Pelkey, 164 F. Supp. 2d 264 (D. Conn. 2001).

Disability Discrimination

     The availability of relief for alleged disability discrimination against wheelchair bound inmate under the Americans With Disabilities Act, 42 U.S.C. Sec. 12132 and the Rehabilitation Act of 1973, 29 U.S.C. Sec. 701 did not bar his claim for damages against individual prison officials under 42 U.S.C. Sec. 1983, despite the fact that the claims involved the same facts of denial of access to handicapped shower facilities. Becker v. Oregon, 170 F. Supp. 2d 1061 (D. Or. 2001).

     Burden on disabled plaintiff, wheelchair confined, of transferring location of trial of his federal civil rights lawsuit to a location more convenient for correctional defendants outweighed the inconvenience to defendants of holding the proceedings in the courthouse where the plaintiff originally filed it. The trial court therefore denied a change of venue in the plaintiff's lawsuit over his medical treatment while incarcerated. Nikac v. Pozzi, 172 F. Supp. 2d 414 (S.D.N.Y. 2001).

Inmate Funds

     Prison officials violated a federal statute protecting veteran's benefits from attachment by creditors by placing a hold on an inmate's trust account which was funded by such benefits, in order to pay for goods and services that prisoner had purchased at a time when the funds were not yet in the account; defendant officials were entitled to qualified immunity from damages because of the lack of prior court decisions on the subject. Nelson v. Heiss, No. 00-55523, 271 F.3d 891 (9th Cir. 2001).

Medical Care

     A prisoner's claim that a medical technician at the prison gave him "inadequate" treatment was insufficient to state a claim for violation of the Eighth Amendment, which requires a showing of deliberate indifference to a serious medical need, rather than simply "neglect" or "medical malpractice." Ford v. Page, 169 F. Supp. 2d 831 (N.D. Ill. 2001).

     Even if medical care is "ultimately" provided, deliberate indifference to a serious medical need may still be shown by a delay in the prisoner's treatment, even for a period of hours. A genuine issue of material fact existed as to whether a claim for such delay existed against a prison doctor, based on prisoner's suffering of severe pain in his leg for four days for medical problem that ultimately required surgery and a transmetatarsal amputation of his left leg. Seals v. Shah, 145 F. Supp. 2d 1378 (N.D. Ga. 2001).

Medical Care: Dental

     Pretrial detainee stated a possible claim against dental hygienist for deliberate indifference to his serious dental needs. Correctional officials whose names appeared on prisoner grievance forms, and jail superintendent, were not personally involved in any alleged deprivation of the prisoner's rights, however, and therefore could not be liable. Manney v. Monroe, No. 97C-7483, 151 F. Supp. 2d (N.D. Ill. 2001).

Mentally Ill Prisoners

     Federal trial court prohibits housing of seriously mentally ill inmates at "super-maximum" security state prison, based on claim that conditions there, as applied to the mentally ill, amounted to cruel and unusual punishment. Jones 'El v. Berge, #00-C-421-C, 164 F. Supp. 2d 1096 (W.D. Wis. 2001).

Prison Litigation Reform Act: Mental Injury

     Without an allegation of physical injury, the Prison Litigation Reform Act barred an inmate from recovering damages from severe stress and depression due to officers' alleged spreading of rumors that he was gay, a child molester, and a "rapist," or from psychological pain from officers' attempt to provoke a physical confrontation between other prisoners and him. Prisoner's claim that officer "squeezed" his genitals during a pat down also did not state an Eighth Amendment claim. Montero v. Crusie, 153 F. Supp. 2d 368 (S.D.N.Y. 2001).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prison Litigation Reform Act's provisions requiring the exhaustion of available administrative remedies before proceeding with a lawsuit did not apply to prisoner's New York state law negligence claim based on the alleged failure of correctional officers and prison officials to protect him from assaults by other inmates. Nunez v. Goord, 172 F. Supp. 2d 417 (S.D.N.Y. 2001).

Prison Litigation Reform Act: Injunctions

     A provision of the Prison Litigation Reform Act, 18 U.S.C. Sec. 3626(a)(2) , under which a grant of preliminary injunctive relief automatically expires after 90 days did not bar the renewal of the court's injunction forbidding prison administrators from imposing discipline on Muslim inmates who missed work assignments to attend Friday Sabbath services. The provision does not limit the number of times that a court can renew the preliminary injunctive relief, but simply imposes a burden on the plaintiffs to "continue to prove that preliminary relief is warranted." Mayweathers v. Newland, No. 00-16708, 258 F.3d 930 (9th Cir. 2001).

Prisoner Assault: By Inmates

     Officer was not liable for failing to prevent a fatal attack on an inmate by other prisoners. Earlier "argument" between the decedent and one of his alleged later attackers over the location of an Arkansas town was carried on in a friendly manner and there was nothing from which the officer could have anticipated the later murderous assault. Tucker v. Evans, #01-1778, 276 F.3d 999 (8th Cir. 2002).

     Sheriff was not entitled to qualified immunity from lawsuit claiming that jail conditions were bad enough that they enhanced the possibility of prisoner-on-prisoner assault. Conditions alleged included overcrowding, understaffing, and failure to segregate pretrial detainees from convicted criminals, violent prisoners from nonviolent ones, juveniles from adults or prisoners with mental disorders from the general population. Marsh v. Butler County, Ala., #99-12813, 268 F.3d 1014 (11th Cir. 2001).

Prisoner Assault: By Officers

     In federal civil rights lawsuit claiming that correctional officers assaulted inmates and family members during a visit to the jail, any claim for psychiatric conditions requiring medical treatment was waived by an attorney's letter indicating that such claims would be withdrawn with prejudice, but the letter did not waive any claims, on behalf of the family members, for injuries to reputation, humiliation, or embarrassment arising out of the incident. Under the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(e, h), a county jail prisoner who was in custody at the time of the alleged incident could not recover damages for emotional distress after his attorney waived any claim he had for physical injuries. Jessamy v. Ehren, 153 F. Supp. 2d 398 (S.D.N.Y. 2001).

     A deputy was not entitled to qualified immunity against liability for the alleged excessive use of force against a prisoner who was allegedly not resisting at the time, but the sheriff's purported condoning of the use of the force by failing to immediately terminate the deputy, occurred after the incident and therefore did not cause the deputy's conduct, so the sheriff could not, on that basis, be held individually liable for damages. Morris v. Crawford County, Arkansas, 173 F. Supp. 2d 870 (W.D. Ark. 2001).

     A verdict for defendant correctional officers in a prisoner's civil rights lawsuit claiming that the officers used excessive force against him was not against the great weight of the evidence or a miscarriage of justice requiring a new trial. The jury could properly reject, if it decided to do so, expert witness testimony by a forensic pathologist that the prisoner's wounds were consistent with a beating but not with a "routine takedown." A jury can reject an expert's opinion even in the absence of another expert testifying to rebut it. Giles v. Rhodes, 171 F. Supp. 2d 220 (S.D.N.Y. 2001).

Prisoner Discipline

     Prisoner did not state a valid claim for review of the disciplinary action against him under New York law by asserting that a correctional officer had been abusive and falsely accused him of rule violations for purposes of harassment, when the prisoner did not allege that the officer played any role in making the final determination in the prison disciplinary proceeding. Cliff v. Greene, 724 N.Y.S.2d 780 (A.D. 2001).

Prisoner Suicide

     Prisoner's estate had a possible claim against prison psychologist for failing to take action to prevent prisoner's suicide when psychologist himself had previously decided that the prisoner was suicidal "enough" to be placed under close observation. Prisoner's own assertion that he was "not suicidal" when released from suicide watch after a day was insufficient to change the result. Comstock v. McCrary, #99-2448, 273 F.3d 693 (6th Cir. 2001).

     Prison medical personnel could not be held liable for failure to prevent a mentally ill prisoner's suicide, but federal appeals court finds that a claim was adequately stated against correctional officers to whom the prisoner purportedly made statements about killing himself and who allegedly did not look inside his cell for five hours on the night he did so, despite his cell window being covered by toilet paper. Sanville v. McCaughtry, #00-2933, 266 F.3d 724 (7th Cir. 2001).

     Kentucky county was entitled to sovereign immunity against claims for negligent operation of jail arising from prisoner's suicide in which he hung himself with a belt from the showerhead in his cell. State Board of Claims accordingly had no jurisdiction over claims brought by prisoner's estate against jailer and deputy jailers. Commonwealth v. Harris, No. 2000-SC-0409-TG, 59 S.W.2d 896 (Ky. 2001).

Privacy

     Male and female prisoners were not "similarly situated" for purposes of male prisoner's lawsuit complaining that the female prisoners were given a greater degree of privacy in toilets and showers than that afforded to males. Stronger security concerns involving male prisoners justified surveillance of male prisoners in toilets and showers by correctional officers, including female officers. Oliver v. Scott, #00-10898, 276 F.3d 736 (5th Cir. 2002).

     Jail employees who participated in the restraint of a prisoner who was suffering from a cocaine overdose and subsequently died could not be awarded damages against the facility commander for violation of their constitutional rights based on his alleged disclosure of their identities to an "angry group" of the friends and family of the prisoner. Nicholas v. Wallenstein, #99-36205, 266 F.3d 1083 (9th Cir. 2001).

Procedural: Discovery

     A prisoner's willful refusal to cooperate with the court's orders for the discovery of information was a sufficient basis for the dismissal with prejudice of his lawsuit over allegedly illegal strip searches performed by correctional personnel, but an assessment of attorneys' fees against him would have "no practical effect" as he was "in poverty" and serving a sentence of 25 years to life. Davidson v. Dean, 204 F.R.D. 251 (S.D.N.Y. 2001).

     The trial court's order denying summary judgment on qualified immunity grounds, and granting the prisoner leave to conduct additional discovery was not immediately appealable when it was based on the court's determination that there were disputed issues of material fact that needed to be resolved. Garrett v. Stratman, #00-1028, 254 F.3d 940 (10th Cir. 2001).

Strip Search: Employees

     It was not clearly established, in June of 1999, that a strip search of an officer at a correctional facility violated the employee's due process rights unless certain conditions, such as reasonable suspicion, were met. Prison officials sued by officer subject to such a search, arguably without reasonable suspicion, were therefore entitled to qualified immunity. Virgili v. Gilbert, No. 00-3371, 272 F.3d 391 (6th Cir. 2001).