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

Summaries from the Jan. 2002

Assault and Battery: Physical

Arrestee's conviction for resisting arrest did not bar her excessive force claim since it is possible that the officer used the allegedly excessive force after placing her under arrest. Sanford v. Motts, No. 00-56926, 258 F.3d 1117 (9th Cir. 2001).

Defendant police officers were entitled to summary judgment on lawsuit alleging that one of them had hit the plaintiff in the mouth with a nightstick while he was attempting to obtain the identifying number of a police car for purposes of lodging a complaint about the officers' behavior in allegedly beating his friends. Plaintiff was unable to identify which of the two officers allegedly assaulted him, and did not claim either that both officers attacked him or that one stood idly by while the other committed the assault, so that individual capacity claims against the two officers could not be supported. Roberts v. Prince George's County, Md., No. Civ. A. 2000-186, 157 F. Supp. 2d 607 (D. Md. 2001).

Damages: Compensatory

Damage award of $3.5 million in non-economic damages to an arrestee who suffered the loss of one eye and an impairment to his left hand in an alleged assault by police officers was excessive under both federal and Maryland state law. Punitive damage awards of $150,000 each against two officers and $100,000 against a third were also excessive. Court orders reduction of non-economic compensatory damages to $1.25 million and of punitive damages to $50,000 each against two offices and $35,000 against a third, or, in the alternative, a new trial on damages. McCollum v. McDaniel, 136 F. Supp. 2d 172 (D. Md. 2001).

Domestic Violence

Police department was not liable for officer's actions in going to his ex-wife's residence, while on vacation and intoxicated, shooting into the house, and then taking ex-wife's new husband and his own children hostage. Plaintiffs did not show that there was a city policy of ignoring complaints concerning domestic violence by officers. Hansell v. City of Atlantic City, Civ. A. No. 96-CV-5957, 152 F. Supp. 2d 589 (D.N.J. 2001).

South Carolina domestic violence statute did not impose a duty on the sheriff's department to provide protection to specific domestic violence victims. Court rejects claim that wife shot and killed by her husband was used a "bait" to capture her husband. Arthurs v. Aiken County, No. 25331, 551 S.E.2d 579 (S.C. 2001).

False Arrest/Imprisonment: No Warrant

Woman arrested for alleged narcotics sale to undercover officer stated a claim for false arrest and malicious prosecution when she alleged that she did not meet the description of the suspect sought, was arrested on the basis of an unreliable and suggestive one-person "show-up" identification, and officers had a videotape of the subject sought that they could have compared her appearance to.Hutchins v. Peterson, No. 2:00-CV-457, 139 F. Supp. 2d 575 (D. Vt. 2001).

Police officers did not need warrants to make arrests for allegedly obscene nude dances performed in their presence. Furfaro v. City of Seattle, #68971-7, 27 P.3d 1160 (Wash. 2001).

Firearms Related: Intentional Use

Firing of "beanbag round" into the face of emotionally disturbed man who had not threatened officers and was not armed was an excessive use of force, federal appeals court rules. Officer was not entitled to qualified immunity from liability. Deorle v. Rutherford, No. 99-17188, 263 F.3d 1106 (9th Cir. 2001).

Police officer who shot a woman seconds after she had thrown a knife at another officer was entitled to qualified immunity for incident which occurred in 1987. Appeals court rules that similar conduct today might present a jury question as to whether the officer used excessive force. Willingham v. Loughnan, 261 F.3d 1178 (11th Cir. 2001).

Police officer did not act unreasonably in shooting fleeing suspect in the back when he believed that the suspect was reaching for a weapon, based on his motions; no liability for shooting and killing suspect who turned out to be unarmed. Thompson v. Hubbard, No. 00-2505, 257 F.3d 896 (8th Cir. 2001).

Genuine issues of material fact as to whether officer reasonably could have believed that mentally ill suspect he shot posed a risk of harm precluded summary judgment for officer. Facts disputed include whether the officer actually and reasonably believed that the suspect was armed. Clem v. County of Fairfax, No. CIV. A. 00-1684-A, 150 F. Supp. 2d 888 (E.D. Va. 2001).

The mother of an emotionally disturbed man shot eight times and killed by police officers while he "incoherently" waved a pipe at them in a field where he had wandered after a car accident was awarded $1.2 million in damages against the city by a jury that found that the officers acted negligently. Decedent was found 30% at fault for his own death. Lifton v. City of Vacaville, No. CIV S 98 1678 (U.S. Dist. Ct. E.D. Calif.), July 10, 2001, reported in The National Law Journal, p. B3 (Aug. 20, 2001).

First Amendment

Five alleged instances of primarily verbal "harassment" by a police officer over a three- year period, even if "inappropriate," was insufficient to state a claim for violation of a woman's First Amendment rights to complain about the officer's conduct towards her adult son. A person of "ordinary firmness" would not be "chilled" from expressing her views based on the officer's alleged actions. Carroll v. Pfeffer, No. 00-2946, 262 F.3d 847 (8th Cir. 2001).

Governmental Liability: Policy/Custom

Single act of alleged excessive force by police officers is insufficient to impose liability upon a county since it does not show the existence of a county policy, practice or custom. Vincent v. Prince George's County, Md., 157 F. Supp. 2d 588 (D. Md. 2001).

High-Speed Pursuit

Officers and city were not liable for the death of a bicyclist struck by a pursued vehicle driven by fleeing drug dealer suspects who had previously fired at officers. Officers, who pursued suspects with lights and sirens activated, did not act with gross negligence or recklessness in conducting pursuit. Sergent v. City of Charleston, No. 28479, 549 S.E.2d 311 (W. Va. 2001).

Negligence: Vehicle Related

California Supreme Court rules that highway patrol officer had a clearly established duty under state law to exercise due care in directing a traffic violator to stop in a particular location. Passengers in vehicle injured after it was struck from behind while stopped on highway's center median could pursue negligence claim against officer and highway patrol. Lugtu v. California Highway Patrol, No. S088116, 28 P.3d 249 (Cal. 2001).

Father of minor awarded $20,000 in damages for child's permanent prominent facial scarring caused by accident after transit police officer's vehicle failed to stop at stop sign. Neason v. Transit Management of Southeast Louisiana, Inc., #2000-CA-1271, 789 So. 2d 31 (La. App. 2001).

       Jury awards $5 million to motorist who suffered brain damage from collision with speeding police vehicle. Six witnesses testified that officer's overhead lights were not turned on, while three officers stated that lights were operating. Jury rejects defense argument that motorist was intoxicated and ignored the police vehicle's lights when she turned left into its path. Krall v. Des Plaines and Neubauer, No. 00-L-004096 (Circuit Court of Cook County, IL.), reported in The National Law Journal, p. A6 (November 5, 2001).

Police Plaintiffs: Defamation

Company which issued video stating that police officers had been "implicated" in deaths of two teenage boys and a subsequent "cover-up" could not be held liable for defamation when officers failed to meet the burden of proving either that the statement was false or that it was made with "actual malice." Arguments disputing the credibility of those who had "implicated" the officers did not alter the fact that they had been accused by some. Campbell v. Citizens for an Honest Government, Inc., No. 00-1411, 255 F.3d 560 (8th Cir. 2001).

Public Protection: Crime Victims

"Public duty" doctrine does not bar, in Michigan, lawsuit by kidnap/rape victim against police dispatcher for allegedly failing to disclose to the police the location of her assailant following conversations with the assailant's mother, who was her friend. Beaudre v. Henderson, No. 114261, 631 N.W.2d 308 (Mich. 2001).

Public Protection: Motorist

Officer was not liable for failure to extract trapped motorist from burning vehicle after accident. Officer did what he could to attempt rescue and did nothing to place motorist in added danger. Opoku v. City of Philadelphia, 152 F. Supp. 2d 809 (E.D. Pa. 2001).

Racial Discrimination

Alleged eight minute response time to 911 call reporting attack on African-American pool hall co-owner by his fellow investors, even if true, did not show denial of equal protection. Plaintiff did not show that any delay was racially motivated or that response time was unreasonable. Brew v. City of Emeryville, No. C-99-4720, 138 F. Supp. 2d 1217 (N.D. Cal. 2001).

Strip Search

A beautician on her way home from a vacation camping trip was awarded $129,750 in damages by a jury for an allegedly "humiliating" strip search conducted at an airport by U.S. Customs agents after a drug dog alerted to her. The plaintiff was required to strip, bend over and spread open her vagina and buttocks as the agents looked for drugs which were not found, and then agreed to be x-rayed at a local hospital. Kaniff v. U.S., No. 99C-3882 (U.S. Dist. Ct. N.D. Ill.), reported in The National Law Journal, p. B3 (Sept. 17, 2001).

Arbitration Procedures

Minnesota appellate court overturns an arbitral award that reinstated a police officer who had a long history of harassing women. City of Brooklyn Center v. Law Enf. Labor Serv., #C5-01-414, 635 N.W.2d 236, 2001 Minn. App. Lexis 1146, 168 LRRM (BNA) 2593 (Minn. App. 2001).

A grievance brought in behalf of a retired firefighter must be denied, as a retiree is no longer covered by the bargaining agreement. City of Watervliet and Watervliet Unif. Firefighters' Assn., N.Y. P.E.R.B. #A-201-075, 116 LA (BNA) 238 (Babiskin, 2001).

Disciplinary Appeals

Federal appeals court rejects a federal suit, filed by an ex-officer, challenging her termination on retaliatory grounds.Because her dismissal had been affirmed by a state court, it could not be relitigated. Durgins v. City of East St. Louis, #00-3271, 2001 U.S. App. Lexis 24566 (7th Cir.).

Police captain, who's termination for sexual harassment was affirmed by a police board and appellate court, could not challenge his dismissal in federal court by disguising the appeal as a civil rights claim. Manley v. Chicago, #99-3785, 236 F.3d 392 (7th Cir. 2001).

Disciplinary Offenses

Arbitrator upholds a five-day disciplinary suspension of an academy instructor who used inflammatory language to describe a student’s husband. Federal Bur. of Prisons and AFGE L-33, FMCS #01/00294, 116 LA (BNA) 255 (Cocalis, 2001).

Disciplinary Searches

Supreme Court declines to hear a prison employee search case.A visual body cavity search of prison employees does not require probable cause, but management must a have reasonable and individualized suspicion that the employee is hiding contraband on his/her person. Although officials briefly observed the plaintiff's vaginal and anal cavities, the search was supported by tip from previously reliable inmate-informer. Leverette v. Bell, 247 F.3d 160 (4th Cir. 2001); cert. den., #01-277, 70 L.W. 3315 (2001).

Domestic Partner Rights

By a 2-to-1 margin, voters in Miami Beach approved two ballot measures granting health coverage for the domestic partners of all city employees and survivor benefits for the domestic partners of police officers and firefighters.A domestic partner is someone in a "committed relationship between two people who consider themselves as a member of each other's immediate family" and who have registered their partnership with the city. Prior coverage was limited to an employee's spouse and dependent children. 39 (1935) G.E.R.R. (BNA) 1206 (Nov. 6, 2001).

Drug Abuse and Rehabilitation

Federal court rejects the privacy and wrongful termination claim of an ex-trooper who had been videotaped at a pot party before he had been hired. Dasey v. Mass. State Police, #00-11232, 2001 U.S. Dist. Lexis 16149 17 IER Cases (BNA) 1708 (D. Mass. 2001).

False Misconduct Complaints - Remedies

California appeals court overturns a law that made it a criminal offense to falsely accuse a peace officer of misconduct. Peo. v. Stanistreet, #B143501, 93 Cal. App. 4th 469, 2001 Cal. App. Lexis 855, 113 Cal.Rptr.2d 529 (2nd Dist. 2001).

Family and Medical Leave

Appellate court sustains the judgment against a state police employee who improperly rejected a post-pregnancy sick leave request by a male trooper, but concludes that the $375,000 jury verdict for emotional distress was excessive. Knussman v. Maryland, #99-2349, 2001 U.S. App. Lexis 24037 (4th Cir.).

Free Speech

Eighth Circuit refuses to dismiss a wrongful termination lawsuit of an asst. fire chief who was terminated for speaking on a radio show about racism in the fire service.To warrant disciplinary action, the defendants must show the speech actually disrupted the workplace. Washington v. Normandy Fire Prot. Dist., #00-3828, 2001 U.S. App. Lexis 23832 (8th Cir.).

Handicap Laws / Abilities Discrimination - In General

Federal court refuses to dismiss a suit by an injured NYPD officer who was passed over for sergeant. Morris v. City of N.Y.,#99 Civ. 9813, 153 F.Supp.2d 494, 2001 U.S. Dist. Lexis 11208 (S.D.N.Y.).

Handicap Laws / Abilities Discrimination - Accommodation - In General

Federal court rejects a reassignment demand from an asthmatic corrections officer.His condition did not impair the major life activities of breathing or working. Saunders v. Baltimore Co., #JFM-01-CV-1291, 163 F.Supp.2d 564, 2001 U.S. Dist. Lexis 14576 (D. Md.).

Homosexual & Transgendered Employee Rights

Denver ordinance prohibits public employment discrimination against transgendered individuals. Ordinance CB0898-01, 39 (1935) G.E.R.R. (BNA) 1206 (Adopted Nov. 5, 2001).

Injuries to Employees

Louisiana appellate court modifies an award to a lieutenant who was accidentally shot by a deputy. Liability was conceded by the deputy and the sheriff; all claims against the body armor manufacturer were voluntarily dropped. The judgment was reduced to past earning losses of $100,000 and future losses of $180,000. Doss v. Second Chance Body Armor, #34,788-CA, 2001 La. App. Lexis 1910, 794 So. 2d 97 (La.App. 2 Cir., 2001).

Occupational Safety & Disease

The U.S. Centers for Disease Control and Prevention have issued interim guidelines to minimize anthrax exposure at worksites. The CDC Health Advisory, issued Oct. 31, 2001, is on the agency's website. See also, Morbidity and Mortality Weekly Report (10-26-2001).

Political Activity/Patronage Employment

Federal jury finds that the City of Chicago Heights, Illinois, fired one city employee and demoted or reassigned three police officers in retaliation for their opposition to the mayor's re-election in 1999. It awarded the four a total $700,000 in damages; punitive damages were assessed against the mayor in the sum of $15,000, against the current police chief for $7,500 and against an ex-chief for$1,500. Kulwin, Murphy, Pilota and Robustelli v. Ciambrone, verdict rptd. in the Chicago Tribune on 11/02/2001, p. 3 (N.D. Ill.).

Race: Affirmative Action & Quotas

The U.S. Supreme Court has declined to disturb an appeals court finding that the Chicago fire dept's affirmative action plan can continue because it was narrowly tailored to respond to discrimination against minorities.The city argued that the Constitution does not require affirmative action to cease as soon as discrimination ends. Chicago Fire Fighters Union L-2 v. City of Chicago, #00-1272, 249 F.3d 649, 2001 U.S. App. Lexis 8081, 85 FEP Cases (BNA) 1305 (7th Cir. 2001) cert. den., #01-365, 70 U.S.L.W. 3315 (10/29/01).

Sexual Harassment - In General

A California deputy sheriff has been sentenced to 30 days in jail for fondling a woman volunteer firefighter while at a fire scene. The deputy was convicted of misdemeanor sexual battery and was ordered to register as a sex offender.People v. Dolfin, Santa Clara Co. Superior Court (11-5-2001).

Sexual Harassment - Same Gender

Ex-officer fails to win back his job after he was separated for major depression. The fact that a gay sergeant was overly friendly did not rise to the level of a hostile work environment.Federal court also rejects his stress disability claim. Pollard v. City of Northwood, #3:99cv7624, 161 F.Supp.2d 782, 2001 U.S. Dist. Lexis 4277 (N.D. Ohio 2001).

Stress Related Claims and Defenses:

Article: "Correctional employee stress and strain," and "Examining the health risks for corrections professionals," 63 (6) Corrections Today 83 and 110 (Oct. 2001), American Correctional Assn., www.aca.org

Union and Associational Activity

Federal court upholds an officer’s lawsuit against the chief and mayor who imposed a two-day suspension for disturbing the mayor’s inauguration by blowing a truck airhorn. The protest was protected speech under the First Amendment. Meaney v. Dever, #99-11538, 2001 U.S. Dist. Lexis 16148, 168 LRRM (BNA) 2518 (D. Mass. 2001.

Use of racial slurs by employees waiting in voting line at a unionization election does not invalidate the election, absent some evidence of intent to use race to affect the outcome. NLRB v. Foundry, #00-5062, 2001 U.S. App. Lexis 17707, 2001 FED App. 0263P (6th Cir. 2001).

Whistleblower Requirements and Protection

Federal Merit Board orders the temporary restoration, to full regular duties, of an FAA specialist who was disciplined after he called the FBI to report that the FAA had trained a Saudi with a name similar to a Sept. 11th hijacker. Office of Special Counsel ex rel. Hopkins v. DoT, #CB-1208-02-0004-U-1, 39 (1933) G.E.R.R. (BNA) 1150, – M.S.P.R. – (MSPB, 10/17/01).

New Jersey appeals court reverses a large verdict won by a police officer.An allegation that superiors should not have issued two gun permits is not the kind of employee complaint the law was designed to protect, and does not shield an employee from disciplinary action. McLelland v. Moore, #A-4534-98T5, 343 N.J. Super. 589, 779 A.2d 463, 2001 N.J. Super. Lexis 353 (N.J. App. 2001).

Supreme Court Actions

U.S. Supreme Court, by 5-4 vote, rules that federal civil rights claims may not be brought against private companies acting under color of federal law, such as a private company operating a halfway house under a contract with the federal Bureau of Prisons. Correctional Services Corp. v. Malesko, #00-860, 2001 U.S. LEXIS 10812.

Attorneys' Fees

State was entitled to an award of attorneys' fees against attorney for plaintiff prisoner for costs incurred in pursuing its defense of an appeal of the prisoner's second lawsuit over same personal injury claim. Second lawsuit was essentially the same as the first cause of action which was dismissed, so there was no factual basis to justify the appeal. Rodriguez v. Department of Correction, No. 26505, 29 P.3d 401 (Idaho 2001).

Damages: Nominal

Prisoner waived any right to nominal damages in lawsuit against officer he claimed assaulted him by failing to ask for them; jury did not act improperly in finding that officer's use of force was excessive but that prisoner suffered no compensable damage. Oliver v. Falla, #00-10520, 258 F.3d 1277 (11th Cir. 2001).

Disability Discrimination

Paraplegic prisoner could pursue claim against prison warden for failure to provide him with wheelchair-accessible transportation to and from court hearings and with a wheelchair-accessible scale to allow medical personnel to accurately weigh him. Claims concerning denial of access to library, exercise, and recreational facilities, however, were properly dismissed as lacking specific factual allegations. Evans v. Page, No. 5-99-0216, 755 N.E.2d 105 (Ill. App. 2001).

Jury properly awarded $1.034 million in compensatory damages to wheelchair-bound arrestee injured while being transported in van that was not equipped with wheelchair restraints; appeals court rejects trial court's setting aside of jury's punitive damages award of $1.2 million, however, ruling that punitive damages are available in disability discrimination cases for denial of public services.Gorman v. Easley, #00-1029, 257 F.3d 738 (8th Cir. 2001).

False Imprisonment

Arrestee kept in county jail for twenty-seven days while waiting for a court-ordered psychological evaluation which was never performed could not recover damages against the county for false imprisonment under Florida state law. Summary judgment was denied, however, on federal constitutional due process claim. Card v. Miami-Dade County, Florida, 147 F. Supp. 2d 1334 (S.D. Fla. 2001).

Medical Care

Inmate's claim that he was deprived of his dentures and his prescribed heart medication were sufficient to state an Eighth Amendment claim for deliberate indifference to serious medical needs, even if there was an adequate state law remedy for the deprivation of his property. Wynn v. Southward, No. 00-2271, 251 F.3d 588 (7th Cir. 2001).

Prisoner's chronic back injury was sufficiently serious to support a claim for inadequate medical care, but he failed to show that prison officials were "deliberately indifferent" to his medical needs. Dobbin v. Artuz, 143 F. Supp. 2d 292 (S.D.N.Y. 2001).

Prisoner seeking to show that his medical care was inadequate who wanted to introduce expert witness testimony had the burden of proving the qualifications, training and experience of the witnesses were sufficient to admit them as experts who could offer opinion testimony. Court would not, however, bar such witnesses without first hearing evidence on those qualifications. Hucker v. City of Beaumont, 147 F. Supp. 2d 565 (E.D. Tex. 2001).

Prison Litigation Reform Act: Exhaustion of Remedies

Prisoner could not pursue civil rights lawsuit over alleged inadequate medical treatment when he failed to ever submit a grievance under an available four stage prison administrative process. Massey v. Helman, #00-1478, 259 F.3d 641 (7th Cir. 2001).

Prisoner's claim that he was assaulted by officers in retaliation for his participation in a prison disturbance was subject to the exhaustion of remedies provisions of the Prison Litigation Reform Act, and was properly dismissed when he failed to pursue administrative grievance. The purpose of this requirement was not only to block frivolous lawsuits, but also to permit prison officials to attempt to first address complaints internally. Smith v. Zachary, #99-4084, 255 F.3d 446 (7th Cir. 2001).

Prisoner had to exhaust available administrative grievances before pursuing a federal civil rights lawsuit over prison nurse's alleged deliberate indifference to his medical needs. "Substantial" compliance with the exhaustion of remedies requirement was not enough. Wright v. Hollingsworth, No. 99-40063, 260 F.3d 357 (5th Cir. 2001).

Prisoner Assault: By Officer

Officer's alleged slamming of cell port door on prisoner's hand after prisoner placed it there holding some garbage was a minimal use of force and did not cause a significant injury. Federal appeals court rules that it was a response to a legitimate security interest and was not an excessive use of force. Outlaw v. Newkirk, #98-4252, 259 F. 3d 833 (7th Cir. 2001).

Prisoner Death/Injury

Federal prisoner awarded $900 in damages for injuries suffered in vehicle accident while being transported to a new facility. Chong-Won Tai v. U.S., 155 F. Supp. 2d 856 (N.D. Ill. 2001).

Prisoner Restraint

A prisoner's four-hour immobilization in "four-point" restraints, by itself, did not constitute an atypical and significant hardship sufficient to support a federal civil rights claim. Laws v. Cleaver, 140 F. Supp. 2d 145 (D. Conn. 2001).

Prisoner Suicide

Estate of 17-year-old male pretrial detainee who committed suicide in N.Y. county jail did not show that jail officials were "subjectively aware" that he posed a suicide risk, so no federal civil rights claim could be pursued for failure to prevent the death. Plaintiff could, however, pursue state law wrongful death/negligence claim.Rivera v. County of Westchester, 729 N.Y.S.2d 836 (Sup. 2001).

County jail had no duty to obtain medical records of detainee from county hospital which would have revealed that he was a suicide risk and had previously attempted to kill himself. In the absence of an awareness of this risk, officer's failure to conduct required half-hour cell checks did not constitute deliberate indifference to the risk of the detainee committing suicide, but a state law negligence claim based on this can be pursued. Hott v. Hennepin County, #00-3595, 260 F.3d 901 (8th Cir. 2001).

Jail officials were not deliberately indifferent to the risk of prisoner suicide simply because they failed to remove a coat hook from jail cells after a prior suicide at the jail took place by a prisoner hanging himself from a protruding light fixture. Pretrial detainee could not recover damages for brain injuries he received during his suicide attempt. Hofer v. City of Auburn, Alabama, 155 F. Supp. 2d 1308 (M.D. Ala. 2001).

Racial Discrimination

Prisoner's claim that he was restrained with 5-point restraint for 48 hours because of his race and prior complaints about expressions of racism -- and that he was shown a drawing of a person in a noose -- state a claim for denial of equal protection. Use of restraints for such an extended time period could also constitute excessive use of force. Davis v. Lester, 156 F. Supp. 2d 588 (W.D. Va. 2001).

Segregation: Punitive

Pretrial detainee allegedly placed in segregation for two and a half years as punishment without procedural due process could pursue constitutional claim. At the time of segregation, in 1995, the law clearly established that a pretrial detainee could only be punished for misconduct after being given some sort of procedural protection, so that defendant officials were not entitled to qualified immunity. Love v. Sheahan, 156 F. Supp. 2d 749 (N.D. Ill. 2001).

Sexual Assault

Two female former residents of juvenile detention facility awarded $200,000 against former employee for his alleged sexual assaults against them; federal appeals court reinstates civil rights claim against assailant's co-worker, a counselor who admitted that she had heard "numerous rumors" that he was having sex with female detainees. Beers-Capitol v. Whetzel, No. 00-2479, 256 F.3d 120 (3rd Cir. 2001).

Strip Searches

County policy requiring strip search of all detainees sent to county jail violated clearly established law when it did not require reasonable suspicion that an individual possessed contraband or weapons. Shain v. Ellison, #00-7061, 2001 U.S. App. LEXIS 22525 (2nd Cir.).