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

Note: This is the online version of the print edition that is mailed to subscribers. It only summarizes the featured articles found in the other three periodicals. The clickable links to actual court decisions (or arbitration awards) are in the three online periodicals, and are NOT duplicated in this summary.

Summaries from the October 2002

Assault and Battery: Handcuffs

     Arresting officer did not use excessive force in handcuffing arrestee despite his claim that his arm was injured. Officer "need not credit everything a suspect tells him," and arrestee displayed no obvious signs of physical injury. Rodriguez v. Farrell, #00-13147, 294 F.3d 1276 (11th Cir. 2002).

     Defendant officers were not entitled to summary judgment on the issue of whether they used excessive force in handcuffing a suspect and carrying him to a vehicle, but their use of a four-point restraint to tie his arms and legs together when he continued to resist efforts to control him did not constitute excessive use of force. Tobias v. County of Putnam, 191 F. Supp. 2d 364 (S.D.N.Y. 2002).

     City held liable by jury for $1 million for death of disabled detainee who fell face forward on the sidewalk after officers took away his cane and handcuffed him behind his back when he allegedly became verbally resistant to them. The officers argued that the decedent had fallen without warning and that he may have died of acute alcohol intoxication, or suffered a seizure or black out which caused him to fall. Eady v. City of Los Angeles, No. TC 014-169 (Los Angeles Co., Calif. Superior Court, May 8, 2002), reported in The National Law Journal, p. B3 (July 22, 2002).

Assault and Battery: Physical

     Officer may have had probable cause for arresting a motorist for a "horn-honking" offense in arguable violation of a local noise ordinance, but the officer was not entitled to qualified immunity on the motorist's excessive force claim, as no reasonable officer could believe that the officer's alleged physical abuse of the motorist was legal after the arrest had been fully achieved. Lee v. Ferraro, #00-16054, 284 F.3d 1188 (11th Cir. 2002).

     After two separate juries, in successive trials on an arrestee's federal civil rights lawsuit, both returned verdicts for the defendant officer on an arrestee's claim that excessive use had been used following his arrest, a federal appeals court upholds the verdicts and the refusal of the trial court to grant a third trial, ruling that the jury could, based on the evidence, find that the injuries suffered by the arrestee were sustained prior to his arrest. Caldwell v. Davis, #01-0183, 31 Fed. Appx. 34 (2nd Cir. 2002).

Attorneys' Fees: For Plaintiff

     Prevailing party in original federal civil rights lawsuit may, in the discretion of the trial court, be awarded attorneys' fees under 42 U.S.C. Sec. 1988 for defending its consent decree from a collateral attack brought by a third party in a subsequent action, including fees for work reasonably spent to monitor and enforce compliance with the decree, even as to matters on which it did not prevail. In this case, however, trial court did not abuse its discretion in denying fees. This case did not involve law enforcement defendants, but the reasoning could apply in a case that did. San Francisco NAACP v. San Francisco Unified School District, #00-16864, 284 F.3d 1163 (9th Cir. 2002).

Damages: Compensatory

     Trial court's refusal to further reduce jury's award of $3.5 million of non-economic damages below $1.25 million it granted was not an abuse of discretion in a federal civil rights action by an arrestee who suffered permanent damages, including the loss of an eye, from officers' alleged use of excessive force following pulling him over for traffic offenses. County was vicariously liable, under Maryland law, for officers' violation of state constitutional rights. McCollum v. McDaniel, #01-1578, 32 Fed. Appx. 49 (4th Cir. 2002).

Defamation

     A police officer's report that a correctional officer was "disorderly" was insufficient to state a federal civil rights claim for injury to the correctional officer's reputation, based on the village's communication to the plaintiff's employer of the report. Defamation alone is insufficient to state a federal civil rights claim and a cause of action would only exist if the plaintiff could show stigma to his reputation, plus other injury. In this case, injury to reputation was all that was shown. Ruggiero v. Phillips, 739 N.Y.S.2d 797 (A.D. 2002).

Defenses: Indemnification

     Federal appeals court orders further proceedings to determine whether Native American tribal police who had a commission from the county sheriff's office was entitled to indemnification from the county under the Oklahoma state Tort Claims Act, 51 Okl. Stat. Ann. Sec. 162, subd. B, pars. 1, 4c, after a jury returned a verdict against him in an arrestee's excessive force claim under 42 U.S.C. Sec. 1983. The fact that the jury concluded that he used excessive force and the trial court concluded that the officer was not entitled to qualified immunity were insufficient to preclude indemnification or to require a finding that the officer acted in bad faith. Lampkin v. Little, #01-7018, 01-7019, 286 F.3d 1206 (10th Cir. 2002).

Defenses: Qualified Immunity

     Officers were not entitled to qualified immunity for investigatory stop and subsequent arrest of a man standing on his own porch based solely on a tip from an anonymous source that the officers knew nothing about, after receiving a phone call which gave no clear evidence of any illegal activity. Feathers v. Aey, 196 F. Supp. 2d 530 (N.D. Ohio 2002).

Defenses: Statute of Limitations

     Lawsuit for defamation against officer, based on his alleged phone call to arrestee's employer, was dismissed as time-barred under an Illinois one-year statute of limitations, but the plaintiff was allowed to conduct further discovery to determine the exact date of the alleged call. Stobinske-Sawyer v. Village of Alsip, 188 F. Supp. 2d 915 (N.D. Ill. 2002).

Domestic Violence

     A father's murder of his infant daughter was "too remote" from a sergeant's actions in responding to the mother's call reporting domestic violence four days earlier to support a claim by the mother for deprivation of her constitutional rights. Sheets v. Mullins, #00-4162, 287 F.3d 581 (6th Cir. 2002).

Emotional Distress

     A claim for intentional infliction of emotional distress under Massachusetts law was not sufficiently asserted by the bare allegation that the family of a woman who an individual refused to date, the city, and the police department conspired to deprive the plaintiff of certain rights. Plaintiff also made "no rational connection" between the defendants and the alleged deprivation of his rights to obtain a firearms license or a business license for purposes of asserting a federal civil rights claim. Baxter v. Conte, 190 F. Supp. 2d 123 (D. Mass. 2001).

False Arrest/Imprisonment: No Warrant

     Jury properly awarded $30,000 in compensatory and $100,000 in punitive damages to 14 year-old African American boy arrested and held in custody for ten hours without probable cause on suspicion of being a "lookout" for a reputed drug house being searched pursuant to a warrant. Officers had no real basis for charging arrestee as a drug lookout. Marshall v. Teske, #01-2722, 01-2793, 284 F.3d 765 (7th Cir. 2002).

     Defense verdict returned for city and airport personnel in false arrest lawsuit brought by lawyer who claimed false arrest when she was denied boarding of an airplane and arrested for repeatedly saying the word "bomb" while her oversized bag was searched at a security checkpoint. Levin v. United Airlines, Inc., No. YC038405 (Los Angeles, Co., Calif. Superior Court), reported in The National Law Journal, p. B2 (July 15, 2002).

False Arrest/Imprisonment: Warrant

     State trooper was entitled to qualified immunity for applying for a warrant for a man's arrest for assault and battery and two violations of a domestic violence prevention order on the basis of her interview with the man's ex-wife, as this gave her a reasonable belief that there was probable cause for a warrant. Wilson v. Zellner, 200 F. Supp. 2d 1356 (M.D. Fla. 2002).

Federal Tort Claims Act

     Arrestee's claims for negligence and intentional infliction of emotional distress growing out of his alleged wrongful arrest by the U.S. Air Force and military police officers had to be dismissed, as sovereign immunity for those claims were not waived under the Federal Tort Claims Act, 28 U.S.C. Sec. 2680(h). Tinch v. United States, 189 F. Supp. 2d 313 (D. Md. 2002).

Firearms Related: Intentional Use

     Police officer was not entitled to qualified immunity on his use of deadly force against a mentally ill suspect when a reasonable officer under the circumstances could not believe that the suspect posed a threat of serious injury to the officer or others. Clem v. Corbeau, #01-1799, 284 F.3d 543 (4th Cir. 2002).

     Deputy who allegedly shot through window of house at suspect who had a holstered gun after chasing him there despite the fact that he did not fit the description of the suspect sought was not entitled to qualified immunity in federal civil rights lawsuit filed over suspect's death. George v. Pinellas County, No. 01-12159, 285 F.3d 1334 (11th Cir. 2002).

First Amendment

     City ordinance restricting the use of amplified sound to 25-foot audibility from a private property line was so limiting that it constituted a complete ban on the use of amplified sound for any form of speech and violated the First Amendment. Court rules that the ordinance in question was not a reasonable time, place and manner restriction on speech, but an impermissible prior restraint which violated the rights of those seeking to hold a live music festival on private property. City council member, however, was entitled to qualified immunity from liability for money damages. Lilly v. City of Salida, 192 F. Supp. 2d 1191 (D. Colo. 2002).

     Georgia statute which prohibited the advertising and distribution of sexual devices violated the First Amendment. Georgia statute, O.C.G.A. Sec. 16-12-80, was not expressly preempted by federal Medical Device Amendments of 1976, 21 U.S.C. Sec. 360k(a) when its purpose was not related to the safety or effectiveness of the sexual devices, but rather related to public morality and the distribution of allegedly obscene material. Owner of retail establishment selling devices could pursue federal civil rights claim. This That and Other Gift & Tobacco v. Cobb County, #01-13482, 285 F.3d 1319 (11th Cir. 2002).

Freedom of Information

     Plaintiff's failure to exhaust available administrative remedies on the denial of its Freedom of Information Act (FOIA) request for documents relating to the FBI's automated system called "Carnivore" for surveillance of internet communications warranted dismissal of its lawsuit under 5 U.S.C. Sec. 552(a)(6), since it did not file an administrative appeal. The plaintiff's failure to pay fees imposed by the FBI for processing requested documents also constituted a failure to exhaust administrative remedies, precluding the lawsuit. Judicial Watch, Inc. v. FBI, 190 F. Supp. 2d 29 (D.D.C. 2002).

Frivolous Lawsuits

     Arrestee's federal civil rights lawsuit claiming that the FBI and Drug Enforcement Administration (DEA) had surgically implanted an electronic tracking device in his body could not be dismissed as "fantastic and delusional" since it raised factual questions and the arrestee was not proceeding as a pauper, having paid a filing fee, so that the provisions of 28 U.S.C. Sec. 1915 for the screening of frivolous pauper lawsuits did not apply. Official capacity claims, however, were barred against FBI and DEA agents under the Federal Tort Claims Act, FTCA, 28 U.S.C. Secs. 2401 and 2675, since the plaintiff failed to file claims with the agencies as required by the statute. Marino v. Gammel, 191 F. Supp. 2d 243 (D. Mass. 2002).

Governmental Liability: Policy/Custom

     Police chief's policy-making role and personal involvement in the execution of search warrants against five students suspected of planning an armed assault at a high school was sufficient to state a claim against the city for violation of federal civil rights. Smith v. Barber, 195 F. Supp. 2d 1264 (D. Kan. 2002).

Interrogation

     Arrestee with developmental handicap was properly awarded $1 in nominal damages and $10,000 in punitive damages on a claim that a police officer improperly coerced his confession to a charge of stealing a wallet during a custodial interrogation. Ayuyu v. Tagabuel, #01-15119, 284 F.3d 1023 (9th Cir. 2002).

Negligence: Vehicle Related

     There was a genuine issue of fact as to whether a police officer drove his vehicle recklessly when he responded to a burglary report, precluding summary judgment in a lawsuit for injuries which occurred after he collided with a motorist's car. Dunlea v. Township of Belleville, 349 N.J. Super. 506, 793 A.2d 888 (N.J. Super. A.D. 2002).

Off-Duty/Color of Law

     Two off-duty officers liable for $32 in compensatory damages and $150,000 in punitive damages for allegedly frightening members of a family by pulling their car over, shouting obscenities at them, and threatening them with guns drawn. The two officers, a married couple, claimed that they had only stopped the car after someone in it threw something at their vehicle. No damages were awarded against the employing city, as the jury found that the officers acted outside the scope of their employment. Miller v. Visser, No. 00-CV-9058 (U.S. Dist. Ct., N.D. Okla.), reported in The National Law Journal, p. B2 (July 29, 2002).

Police Plaintiff: Firearms Related

     City was not liable for injury suffered by officer who was accidentally shot by fellow officer during drug raid. Failure of city to use a specially trained unit to conduct raids on suspected drug dealers' residences did not constitute "deliberately indifferent" behavior that shocked the conscience and violated the injured officer's due process rights. Shooting officer's actions resulted from his own negligence, not from the city's failure to train him adequately. Pahler v. City of Wilkes-Barre, #01-2275, 31 Fed. Appx. 69 (3rd Cir. 2002).

Procedural: Discovery

     Plaintiff's failure to comply with an order to sign a release to authorize the unsealing of certain records relating to the events giving rise to his lawsuit, for purposes of discovery, was sufficient to support the dismissal of his federal civil rights claim when he was expressly warned that this was a possible sanction for his failure to comply. Fulton v. Mangini, 206 F.R.D. 76 (W.D.N.Y. 2001).

     Dismissal of arrestee's federal civil rights wrongful arrest action against sheriff's department and deputies because of his failure to comply with discovery, including failure to appear at a scheduled deposition was within the trial court's discretion. Voit v. Jefferson County Sheriff's Department, #01-5887, 31 Fed. Appx. 189 (6th Cir. 2002).

Property

     Police officers and city and county for which they worked could not be sued under California law for conversion of man's marijuana which they seized and destroyed, despite the existence of a state statute, the Compassionate Use Act, allowing for the medical use of the drug. The trial court ruled that the statute created an affirmative defense under state law to criminal prosecution for possession of the drug, but did not create a private right to sue for damages for the seizure and destruction of the drug. Rodrigs v. City of Capitola, No. DV 139674 (Santa Cruz Co., Calif., Super. Ct., April 15, 2002), reported in The National Law Journal, p. B2 (July 15, 2002).

Public Protection: Disturbed/Suicidal Persons

     City and officers were not liable for deaths of deranged husband and his son which arose from a two-day armed standoff with police and ended in a murder-suicide. Exigent circumstances supported a warrantless entry into the home based on the damage to the wife and son based on the husband's conduct, and the use of force, including tear gas, a battering ram and incendiary devices was reasonable, rather than excessive, under the circumstances. Ewolski v. City of Brunswick, #00-3066, 287 F.3d 492 (6th Cir. 2002).

Search and Seizure: Home/Business

     A genuine issue of material fact as to whether police officers had knowledge concerning the actual location of a telephone caller who reported that an intoxicated man was attempting to get into her house precluded summary judgment for the officers in a lawsuit filed by a homeowner after the officers mistakenly went to and entered his home, rather than the home of the caller. Davenport v. Simmons, 192 F. Supp. 2d 812 (W.D. Tenn. 2001).

     Police officer was in hot pursuit of suspect when he entered a home without a warrant and his entry therefore did not violate the occupants' Fourth Amendment rights. Officer had probable cause to believe that the visitor to the home was an immediate threat to either the officer or the public, when he had previously injured his sister and slashed his parent's tires. Hickey v. Hayse, 188 F. Supp. 2d 722 (W.D. Ken. 2001).

Strip Searches

     Strip search of woman arrested on a misdemeanor charge was sufficient, under District of Columbia law, to support a claim against U.S. Marshals for intrusion upon seclusion, a form of invasion of privacy, even if their actions did not violate the U.S. Constitution. Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671-2680 does not waive the sovereign immunity of the United States for constitutional claims. Helton v. United States, 191 F. Supp. 2d 179 (D.D.C. 2002).

Arbitration Procedures

     Texas Supreme Court holds that at-will employees are subject to binding arbitration for all employment disputes by continuing to work after the employer notifies workers of an effective date. The court rejected the argument that unsigned arbitration agreements are not enforceable. Halliburton Co. and Brown & Root Energy Services, #00-1206, 45 Tex. Sup. J. 720, 80 S.W.3d 566, 2002 Tex. Lexis 70, 45 Tex. Sup. J. 720, 18 IER Cases (BNA) 1121 (Tex. 2002).

     Arbitrator refuses to allow a union to enlarge the subject of the grievance submitted. "Any attempt by either party to present a new issue, after the filing of the original grievance, is an expansion of scope of the original complaint, and should be rejected in arbitration." City of Bay City and FOP L-103, FMCS Case #01/09422, 117 LA (BNA) 60 (Allen, 2002).

Back Pay Claims and Awards

     A reinstated public employee's lawsuit, alleging that a reinstatement award had been improperly classified as back pay, rather than workers' comp. benefits, was an improper challenge to the workers' comp. decision. Pueschel v. U.S., #01-5116, 297 F.3d 1371 (Fed Cir. 2002).

Criminal Liability

     California appellate court holds that a youth, who drew a painting of himself shooting a particular Chico Police officer, was protected speech, overturning a conviction for making a criminal threat. In re Ryan D., #C035092, 209 F.Supp.2d 319 (Cal. App. 3d Dist. 2002).

Disability Rights - Line of duty related

     Maryland appeals court holds that a firefighter who died from cancer, as a result of having inhaled carcinogenic fumes in the course of his duties, suffered an occupational "injury" and his estate is entitled to receive special disability pension benefits. However, the state's five-year statute of limitations runs from the date of injury, not the date of disablement, and whether he had filed his claim on time depends on whether his cancer was primary or metastatic. Board of Trustees, Fire and Police Empl. Ret. Sys. v. Mitchell, #02292, 145 Md. App. 1, 800 A.2d 803, 2002 Md. App. Lexis 112 (2002).

EDITOR'S CASE ALERT:

Disciplinary Interviews - Abusive

     Seventh Circuit rejects the Fourth Amendment claims of three officers who were ordered to be interviewed by I-A personnel; they received overtime and were not disarmed or relieved of their IDs. A fourth officer pled a valid claim; although only partnered with another officer who was under suspicion, he was grabbed off the street and escorted to headquarters. Driebel v. City of Milwaukee, #01-1689, 2002 U.S. App. Lexis 15304 (7th Cir. 2002).

Disciplinary Offenses - In General

     Arbitrator rules that management had just cause to terminate a police officer who took paid leave to attend military training on multiple occasions. The military attendance and pay records showed him to be absent, and he was unable to prove his presence by the testimony of other military reservists. FOP and the City of Cambridge, Ohio (Graham, 7/12/2002).

     Oregon Supreme Court disciplines an attorney who instructed an investigator to misrepresent his identity as a journalist to interview a claimant. Disciplinary Rule 1-102(A)(3) prohibits conduct involving "dishonesty, fraud, deceit or misrepresentation." In re Ositis, S46805, 333 Ore. 366, 40 P.3d 500, 2002 Ore. Lexis 96 (Ore. 2002).

Disciplinary Punishment - In General

     Arbitrator holds that a city improperly denied a merit increase to 25-year employee because he had been late by a few minutes one day. City of Oklahoma City and L-2406 AFSCME, FMCS Case #01/08842, 116 LA (BNA) 1665 (2002).

     Management did not have just cause to terminate a guard who lost a key, where the employer had insisted throughout the grievance procedure that the grievant was discharged under a progressive discipline policy for a series of offenses and never raised the issue of whether he could be discharged for first offense until the arbitration hearing. Loomis Fargo and Co. and Currency & Security Handlers Assn., FMCS Case #02018/03855-3117, LA (BNA) 112 (Moreland, 2002).

     Ninth Circuit panel holds that the government was not required to order additional remedial training, instead of termination, for an employee who was guilty of repeated safety errors. Brehmer v. FAA, 01-3174, 294 F.3d 1344, 2002 U.S. App. Lexis 12397, 170 LRRM (BNA) 2422 (Fed. Cir. 2002).

Disciplinary Searches

     Ninth Circuit invalidates an FBI search of a city office, with the permission of the City Attorney. A city attorney does not have the authority to consent to a workplace search by criminal investigators. U.S. v. Jones, #01-10352, 286 F.3d 1146, 2002 U.S. App. Lexis 7132 (9th Cir. 2002).

     Ninth Circuit upholds a federal employer's random search of an employee's backpack to deter employee theft, where all employees had signed a notice that his belongings were subject to suspicionless searches. U.S. v. Gonzalez, #01-30059, 300 F.3d 1048, 2002 U.S. App. Lexis 16470 (9th Cir. 2002).

Discovery, Publicity and Media Rights

     Media in Washington state will receive the names of terminated or disciplined state workers who sent abusive e-mails, along with a copy of the e-mails. The information was sought under the Washington Public Disclosure Act. A Superior Court rejected an injunction sought by the union, but permitted the names of nondisciplined workers to be redacted before the mail is released. Wash. Feder. of St. Employees v. St. of Wash., Thurston Co. Super. Ct. #02-2-00679-2, 40 (1963) G.E.R.R. (BNA) 574 (2002).

Domestic Partner Rights

     Because the term "domestic partner" was not defined in the CBA, and an ordinance referred only to same-gender partners for benefit purposes, an arbitrator holds that a heterosexual sergeant was not improperly denied paid leave to care for his ailing domestic partner. Vil. of Oak Park and IL FOP, FMCS Case #01/03578, 117 LA (BNA) 99 (Briggs, 2002).

     Maryland appeals court upholds a county law that extended health, leave, and survivor benefits to the domestic partners of the county employees. Tyma v. Montgomery County,#20-2001, 801 A.2d 148, 2002 Md. Lexis 345 (2002).

Educational Requirements and Incentives

     Arbitrator holds that a city violated the bargaining agreement when it denied tuition reimbursement to a police officer for a religion course, where the city had past practice of reimbursing courses required for a criminal justice degree. City of Oregon and Oregon Police Patrolmen's Assn., 117 LA (BNA) 236 (Klein, 2002).

FLSA - Overtime - in General

     Voluntary extra duty assignments for a city court were compensable at regular police hourly rates plus 50%. The fact that for 25 years the city paid a lower rate, never paid overtime, and the officers never complained is no excuse. The officers are entitled to double the differential (liquidated damages) for 3 years prior to filing the suit, plus legal fees. Cox v. Poughkeepsie, #01 Civ. 3794, 209 F.Supp.2d 319 (S.D.N.Y. 2002).

     Seventh Circuit rules that a city was required to pay a firefighter overtime for time spent in paramedic training, even though he dropped out before completion; the city was entitled to reimbursement for some of its training expenses. Heder v. City of Two Rivers, #01-4118, 295 F.3d 777, 2002 U.S. App. Lexis 13832, 7 WH Cases 2d (BNA) 1665 (7th Cir. 2002).

First Amendment Related

     A divided Fifth Circuit allows a damage suit against police chiefs, sheriffs, and their cities and counties for boycotting the classes of two police academy instructors who testified against a police officer in a use of force case. Kinney v. Weaver, #00-40557, 2002 U.S. App. Lexis 15349 (5th Cir. 2002).

Free Speech

     County government was not liable for a retaliatory termination of an employee, where only one of the three commissioners who voted to eliminate her job was improperly motivated by her criticism of a potential county vendor." An unconstitutional motive on the part of one member of a three- member majority is insufficient to impute an unconstitutional motive to the Commission as a whole." Matthews v. Columbia Co., 01-10863, 294 F.3d 1294, 2002 U.S. App. Lexis 12120, 18 IER Cases (BNA) 1228 (11th Cir.).

     Sixth Circuit overturns an injunction issued to prevent a journalist from disclosing the identity of security guards assigned to the site of a labor dispute. County Security Agency v. Ohio Dept. of Commerce v. Betzold, #00-3620, 296 F.3d 477, 2002 FED App. 0224P, 2002 U.S. App. Lexis 13626, 170 LRRM (BNA) 2467 (6th Cir. 2002).

Handicap Discrimination - Specific Disabilities

     Hawaii Supreme Court rejects a discrimination complaint of a "mildly dyslexic" police dispatcher who was forced to resign for repeatedly garbling critical information. Bitney v. Honolulu Police Dept., #22981, 96 Haw. 243, 30 P.3d 257, 2001 Haw. Lexis 318.

Health Insurance & Benefits

     Arbitrator holds that a city did not violate the CBA when it increased fees for ER visits and changed the payment system for prescription drugs. "Substantially similar benefits" should refer to changes that apply to a plan as a whole, and not to minor provisions. Elk Grove Village and Prof. Firefighters L-2340, 117 LA (BNA) 152 (Nathan, 2002).

Homosexual Employee Rights

     Michigan Supreme Court holds that a lesbian police lieutenant could not use a city charter's anti-discrimination clause to bring a damage suit for sexual orientation discrimination. She could sue for gender-based harassment, however. Mack v. City of Detroit, #118468, 620 N.W.2d 670 (2002).

Impasse Arbitration

     Arbitrator selects management's offer of a 6.0 percent wage increase for county detention officers over a union demand of 9.5 percent. Management's offer was higher than comparable counties and higher than given to other county employees. Pottawattamie Co. Iowa and P.C. Detention Officers Assn., 116 LA (BNA) 1761 (Moeller, 2001).

Injuries to Employees

     California's "Firefighter's rule", did not automatically bar a police officer's claim for injury from a railway crossing gate, because the "independent cause" exception may apply. Vasquez v. N. County Transit Dist., #01-55326, 292 F.3d 1049, 2002 U.S. App. Lexis 11095 (9th Cir. 2002).

     A security officer who claimed that he suffered disk bulges, after falling into a pothole on the grounds he was patrolling, was awarded $709,353 by a Los Angeles County Superior Court. Gibson v. Trizec Warner, reported in the Calif. Bar Journal Trial Digest, March 2002.

Occupational Safety & Disease

     N.Y. appellate court allows a injured firefighter to sue New York City for providing protective clothing that did not comply with federal OSHA regulations. 29 C.F.R. Section 1910.156(e) requires fully extended boots or protective shoes or boots, worn in combination with protective trousers. McGovern v. City of N.Y., #330, 742 N.Y.S.2d 218, 2002 N.Y. Slip Op. 03813 , 2002 N.Y. App. Div. Lexis 4780 (2002).

Past Practices Clauses

     Arbitrator holds that management unilaterally ended a 30 year past practice of assigning a bargaining-unit patrolman to fill a detective position. City of Niles and Ohio PBA, FMCS Case #02/00981, 117 LA (BNA) 244 (Parkinson, 2002).

Political Activity

     Fourth Circuit holds that a county sheriff was entitled to qualified immunity from a claim that his employees were not reappointed because they supported his opponent in the election, because the law was not clearly established at the time of the alleged First Amendment violations. Pike v. Osborne, #01-2050, 2002 U.S. App. Lexis 15134 (4th Cir. July 29, 2002).

Privacy Rights

     Although the California constitution protects individual privacy, an opposing party is entitled to learn whether an officer previously worked for another law enforcement agency. Fletcher v. Superior Court (Oakland Police), #A096372, 100 Cal.App.4th 386, 123 Cal.Rptr.2d 99 (Cal.App. 1st Dist. 2002).

     Michigan appeals court upholds a newspaper's FOIA request for the names of city employees and the associated costs of representing them in a grand jury probe. The law's privacy exemption applies to an individual's private life, not public service activities. The secrecy provision relating to grand juries also does not prevent disclosure. Detroit Free Press v. City of Warren, #231010, 250 Mich. App. 164, 645 N.W.2d 71, 2002 Mich. App. Lexis 2412 (2002).

     A proposed rule would implement the privacy provisions in HIPAA, the Health Insurance Portability and Accountability Act of 1996, effective in 2002: "Standards for Privacy of Individually Identifiable Health Information," 67 (59) Federal Register 14775-14815 (FR Doc. 02-7144, Mar. 27, 2002).

     A Los Angeles County Superior Court has awarded a police officer $177,776 against a politician who invaded his privacy and defamed him in a campaign flier. Hernandez v. City of Inglewood, reported in the Calif. Bar Journal Trial Digest, Jan. 2002.

     Woman schoolteacher loses her suit to prevent a male transvestite teacher from using the women's toilets. Minnesota state law "neither requires nor prohibits restroom designation according to self-image" and her federal claim fails because she did not suffer a significant adverse employment action, i.e., a hostile work environment. Cruzan v. Special School District # 1, #01-3417, 294 F.3d 981, 2002 U.S. App. Lexis 12161 (8th Cir.).

Psychological Exams - Screening of Applicants

     Court dismisses, for procedural reasons, a discrimination suit filed by a rejected woman deputy sheriff applicant for an allegedly gender-biased interpretation of her psychological tests and interview. Earlier, the Maryland Cmsn. on Human Relations issued a written finding of no probable cause of discrimination. Willey v. Ward, #2001-1238, 197 F.Supp.2d 384, 2002 U.S. Dist. Lexis 6699 (D.Md. 2002).

Psychological Counseling

     Appeals court sustains termination of a police officer with an attitude problem, who was not fully cooperative with his remedial therapy. "Doctors who oversaw the program testified that [he] did not successfully complete the program and refused to actively engage in it." Moore v. NOPD, #2001-CA-0174, 813 So.2d 507, 2002 La. App. Lexis 612 (La.App. 2002).

Racial Harassment

     Ninth Circuit Court of Appeals upholds a $1 million punitive damages award to a black worker who was repeatedly subjected to jokes and racial slurs. Swinton v. Potomac Corp., #99-36147, 270 F.3d 794, 2001 U.S. App. Lexis 22853, 87 FEP Cases (BNA) 65 (9th Cir. 2001).

Religious Discrimination

     State human rights agency orders a transit authority to pay $50,000 to a Seventh Day Adventist who was required to work on the Sabbath. Testimony revealed the employer allowed other workers to swap days but ignored his requests. Marquez v. Mass. Bay Transp. Auth., Mass. Cmsn. Against Discrim. #97-BEM-3223, 40 (1969) G.E.R.R. (BNA) 740 (MDAC 2002).

Resignations

     A divided federal appeals panel holds that a Jehovah's Witness, who was a cadet with the Washington State Patrol, was not constructively discharged for his unwillingness to salute the flag or take an oath. He resigned before he was threatened with disciplinary action. Lawson v. St. of Washington, #00-35458, 296 F.3d 799, 2002 U.S. App. Lexis 14001, 89 FEP Cases (BNA) 385 (9th Cir. 2002).

Sex Discrimination

     A Sacramento County Superior Court has awarded $951,710 to a state employee in California who claimed he was fired in retaliation for participating in a coworker's complaint of gender discrimination. Prasad v. Univ. of Cal. Davis Med. Ctr., reported in the Calif. Bar Journal Trial Digest, April 2002.

Sexual Harassment - In General

     Woman supervisor's propositions and continued mistreatment of a male subordinate did not rise to the Faragher standard of severe and pervasive hostile work environment, and was not motivated by gender bias. The superior treated all subordinates badly. Walker v. National Revenue, #00-4531, 2002 U.S. App. Lexis 15696 (6th Cir. 2002).

Sexual Harassment - Verdicts, Settlements & Indemnity

     A $30 million punitive damages jury verdict against a private employer has been cut to $8.25 million by the judge. Gober v. Ralphs Grocery, Super. Ct. #N72142, San Diego Co. Calif., rptd. in the S.F. Recorder (7/17/2002).

Training Rights, Requirements

     Arbitrator denies a sergeant's grievance that he was forced to work overtime on his day off, in violation of the bargaining agreement. Requiring him to attend a state mandated training program was not forced overtime. City of Granite City and Policemen's Benev. Labor Cmtee., 117 LA (BNA) 222 (Wang, 2002).

Union and Associational Activity

     A provision in a CBA that the union would indemnify the county, as employer, for any litigation challenging the withholding of representation fees from paychecks, could not be challenged by nonunion members of the bargaining unit. They were unable to show the agreement harmed them. Prescott v. County of El Dorado, #01-15913, 298 F.3d 844 (9th Cir. 2002).

Whistleblower Requirements and Protection

     A California public defender who alleged constructive termination, after disclosing illegal and unethical practices in the public defender's office, was awarded $231,850 by a Nevada County Superior Court. Moore v. County of Nevada, reported in the Calif. Bar Journal Trial Digest, June 2002.

Workers' Compensation - Claim Validity

     Off-duty police officer, injured while assisting at the site of a vehicle accident was entitled to workers' comp benefits. Spieler v. Village of Bel-Nor, #ED79132, 62 S.W.2d 457, 2002 Mo. App. Lexis 1769 (Mo. App. 2001).

Wrongful Discharge / Discipline: Damages

     A California private sector employee who was terminated after speaking up on behalf of a gay coworker was awarded $313,440 by an Orange County Superior Court. Hewus v. Weber Precision Graphics, reported in the Calif. Bar Journal Trial Digest, June 2002.

Access to Courts/Legal Info

     Because all of prison guards who allegedly "conspired" to seize prisoners' legal materials to interfere with their access to the courts worked for the same entity, no federal civil rights conspiracy claim could be pursued; appeals court also finds that two prisoners failed to show that the alleged seizure of their papers caused "actual injury" to their pending cases, while ordering further proceedings on a third plaintiff prisoner's claims. Beese v. Todd, #01-3951, 35 Fed. Appx. 241 (7th Cir. 2002).

Damages: Punitive

     Oregon statute requiring that 60% of any punitive damage award go to a state fund benefiting crime victims does not violate the state constitution. Oregon Supreme Court finds that the statute, Ore. Stat. 18:540 unambiguously applies to federal cases arising from state law. While the case did not involve correctional or law enforcement parties, the reasoning would apply in such cases. DeMendoza v. Huffman, No. SC S48430, 51 P.3d 12232 (Ore. 2002).

Death Penalty

     A prisoner on death row was not entitled to an injunction preventing the state Department of Corrections from executing him until his possible "unnecessary" pain and suffering during the process was minimized. A federal appeals court upheld the finding that the plaintiff's claim, filed as a federal civil rights lawsuit, was properly construed to be a second habeas petition, which he had improperly filed with the trial court without seeking prior permission from the appeals court to file an additional application, so that the trial court had no jurisdiction to hear the claim. (The ruling came on August 14, 2002, the prisoner's execution date). Fugate v. Department of Corrections, No. 02-14400, 2002 U.S. App. Lexis 164611 (11th Cir.).

Defamation

     A police officer's report that a correctional officer was "disorderly" was insufficient to state a federal civil rights claim for injury to the correctional officer's reputation, based on the village's communication to the plaintiff's employer of the report. Defamation alone is insufficient to state a federal civil rights claim and a cause of action would only exist if the plaintiff could show stigma to his reputation, plus other injury. In this case, injury to reputation was all that was shown. Ruggiero v. Phillips, 739 N.Y.S.2d 797 (A.D. 2002).

Disability Discrimination: Employees

     Sick leave policy of New York state Department of Corrections requiring an employee to provide a diagnosis of her medical condition each time she was absent from work violated provisions of the Americans With Disabilities Act (ADA), 42 U.S.C. Sec. 12101 et seq., prohibiting medical inquiries likely to cause an employee to reveal disabilities or perceived disabilities. Fountain v. N.Y. State Department of Correctional Services, 190 F. Supp. 2d 335 (N.D.N.Y. 2002).

Employment Issues

An employee hired to staff an Ohio community-based correctional facility, who was subject to a 120-day initial review period, was entitled to due process in the termination of her employment, the Supreme Court of Ohio ruled in response to a question certified by a federal district court. The court declined, however, to answer a second certified issue of whether the employee was an "at-will employee." McClain v. Northwest Community Corrections Center, Judicial Corrections Board, No. 2001-1312 (Ohio 2002).

False Imprisonment

     Correctional employee was entitled to qualified immunity for keeping prisoner in custody one day longer than he otherwise would have been released, based on a verbal representation that there was an outstanding warrant for his arrest in another jurisdiction. Wilson v. Zellner, 200 F. Supp. 2d 1356 (M.D. Fla. 2002).

First Amendment

     New York prisoner stated a claim for impermissible retaliation against him for protected First Amendment activity by alleging that he was disciplined because he circulated a petition requesting an investigation of a correctional officer's alleged "abusive conduct." Farid v. Goord, 200 F. Supp. 2d 220 (W.D.N.Y. 2002).

Freedom of Information

     Sheriff's department failed to show that information related to excessive force complaints concerning alleged excessive use of force against prisoners were exempt from release under Texas Public Information Act, T.C.A. Government Code Sec. 552.006 on the basis of either a litigation or a law enforcement exemption. Trial court erred, however, in limiting the amount of reimbursement that the sheriff could charge a newspaper for the cost of copying the requested information. Thomas v. Corny, No. 03-01-00099-CV, 71 S.W.3d 473 (Tex. App. --Austin, 2002).

Governmental Liability: Policy/Custom

     Sheriff could not be held liable for alleged deliberate indifference by county jail medical personnel when there was no evidence that he had authorized, approved, or even knowingly acquiesced in any failure by the personnel to dispense treatment to the plaintiff. County was also not liable, despite criticized sick call policy, in the absence of any showing that the policy somehow caused the alleged problem. Warren v. Shelby County, Tenn., 191 F. Supp. 2d 980 (W.D. Tenn. 2001).

Medical Care

     County doctor's affidavit stating that all medical care provided to a prisoner who suffered a brain injury after an assault by another inmate was adequate was insufficient to support summary judgment for the county when the plaintiff 's claim involved the issue of whether county employees interfered with or delayed timely access of the prisoner to medical care. Rush v. Wilder, #S-00-929, 644 N.W.2d 151 (Neb. 2002).

     Correctional officers' failure to dispense medication in response to prisoner's complaints about pain was not deliberate indifference to serious medical needs as officers were simply not permitted to dispense medication, and officers did alert medical staff. Turner v. Kight, 192 F. Supp. 2d 391 (D. Md. 2002).

     Prisoner's allegation that he was misdiagnosed with tuberculosis and then forced to take a medication for its treatment which made him sick was insufficient to state a constitutional Eighth Amendment claim for deliberate indifference to his serious medical needs, since this, at most, indicated a possible claim for negligence or medical malpractice. Parks v. McCoy, #01-3630, 35 Fed. Appx. 239 (7th Cir. 2002).

     Prisoner failed to show that prison officials were deliberately indifferent to his need for timely and adequate medical care for his knee either prior to surgery or during post-operative care, in the absence of showing that any alleged delay caused any further harm. Lindsay v. Terhune, #01-16813, 35 Fed. Appx. 677 (9th Cir. 2002).

EDITOR'S CASE ALERT:

Medical Care: Mental Health

    Federal appeals court establishes legal standard for medicating criminal defendants involuntarily to enable them to be competent for trial. United States v. Gomes, No. 01-1143, 289 F.3d 71 (2nd Cir. 2002).

     Widow of manic depressive detainee who suffered a heart attack and died while in custody could pursue claim that county policy of delaying medical screening of combative inmates constituted a substantial risk of serious harm to the decedent. Gibson v. County of Washoe, Nevada, #99-17338, 290 F.3d 1175 (9th Cir. 2002).

Prison Litigation Reform Act: Exhaustion of Remedies

     Federal appeals court holds that prisoner's claims over his alleged denial of medication for high blood pressure, headaches, and a heart condition were properly dismissed for failure to exhaust administrative remedies. The burden was on the prisoner to specifically show, for each claim, the specific steps he had taken to pursue such remedies, and the result. Smith v. Shelby County, #01-59399, 34 Fed. Appx. 188 (6th Cir. 2002).

     Plaintiff inmates' failure to demonstrate that they had exhausted their available administrative remedies prior to bringing their federal civil rights case over prison conditions did not deprive the federal court of the jurisdiction to consider their case. A dismissal of the inmates' appeal of the dismissal of their complaint on the basis that a notice of appeal only had the signature of one of the seven inmate plaintiffs was improper, as the signature requirement was also not jurisdictional. Casanova v. DuBois, #99-1838, 289 F.3d 142 (1st Cir. 2002).

Prisoner Assault: By Inmate

    Prisoner was entitled to proceed on his claim that correctional officers "set him up" for an assault by another inmate, deliberately removing obstacles to the violent attack. Case v. Ahitow, #01-3564, 2002 U.S. App. Lexis 17277 (7th Cir.).

Prisoner Assault: By Officers

     Georgia prisoner was appropriately awarded $25,000 in compensatory damages on claim that correctional officers used excessive force against him, but punitive damage awards were limited by the provisions of the Prison Litigation Reform Act, and further proceedings were required to determine whether they were appropriately necessary to deter future misconduct. Reduction of attorneys' fees also required to reflect only hours expended on successful claims. Johnson v. Breeden, #00-14090, 280 F.3d 1308 (11th Cir. 2002).

Prisoner Suicide

     Prison medical personnel were not deliberately indifferent to the needs of an inmate who committed suicide, when prisoner's condition was changeable and he sometimes appeared able to interact appropriately with others. Pelletier v. Magnusson, 201 F. Supp. 2d 148 (D. Maine 2002).

     Federal civil rights lawsuit brought by inmate's estate more than two years after his suicide in a county jail was time-barred by a Kansas two year statute of limitations. The time period began to run after the sheriff showed the administrators an air vent similar to that from which the inmate hanged himself and told them that two other similar deaths had occurred, which had led him to consider placing covers over the vents, which he did not do. The court rejected the argument that the grief of the inmate's parents over his death tolled (extended) the two year time limit. Hanchett v. Saline County Board of Commissioners, 194 F. Supp. 2d 1150 (D. Kan. 2001).

Procedural: Appeal

     An order dismissing a prisoner's medical malpractice claim against a doctor who allegedly improperly treated him with anti-psychotic drugs did not also dismiss his federal constitutional claim and his claim for intentional infliction of emotional distress, so that a certification of his case for immediate appeal was improper, requiring dismissal of the appeal for absence of appellate jurisdiction. Mack v. Maloney, #01-1888, 34 Fed. Appx. 1 (1st Cir. 2002).

Procedural: Evidence

     Federal trial court would not take "judicial notice" of information contained on Internet websites offered by defendant correctional officials to demonstrate their claim that they had adopted appropriate treatment procedures for the plaintiff prisoner's hepatitis C condition. In addition to the accuracy of the website information being questionable, because the website could be modified at will by the webmaster, and perhaps other persons, the prisoner, acting as his own lawyer, did not have access to the sites, and no foundation was presented for the "expert" opinion the website information represented. Fenner v. Suthers, 194 F. Supp. 2d 1146 (D. Colo. 2002).

Procedural: Jurisdiction

     Prisoner's course of conduct in failing to object to trial of his federal civil rights claim for alleged inadequate medical care by a federal magistrate judge, and purported post-trial consent, could not cure the jurisdictional defect "inherent" in the failure to obtain express consent from all parties prior to a trial conducted by a magistrate judge, as required by 28 U.S.C. Sec. 636(c)(1). Accordingly, a federal appeals court vacated and remanded the jury's verdict for the defendants in the case. Withrow v. Roell, #00-40627, 288 F.3d 199 (5th Cir. 2002).

     A private individual and a federal public defender did not have a "significant relationship" with an accused U.S.-born al-Quaeda suspect being held in a naval brig which would allow them to act as his "next friend" and file a petition for a writ of habeas corpus on his behalf. Both persons admitted having no prior relationship with the prisoner but claimed that they should be able to act on his behalf anyway because they could demonstrate that they were dedicated to acting in his "best interest." Rejecting this line of reasoning, the appeals court stated that granting standing to act in this manner in the absence of a "significant relationship" with the prisoner would "be opening the flood gates of federal litigation" to "intruders or uninvited meddlers, styling themselves next friends." Hamdi v. Rumsfeld, No. 02-6827, 294 F.3d 598 (4th Cir. 2002).

Religion

     Policy under which Muslim splinter group was designated as a Security Threat Group (STG) subject to special security measures, including the transfer of core group members to a special unit where they must participate in a behavior modification program did not violate prisoners' constitutional rights to free exercise of their religion, their right to equal protection, or deprive them of a protected liberty interest. Fraise v. Terhune, #00-5062, 283 F.3d 506 (3rd Cir. 2002).

Sexual Assault

     Supreme Court of Indiana summarily affirms intermediate appeals court decision [(Robins v. Harris, 740 N.E.2d 914 (Ind. App. 2000), aff'd on rehearing, 743 N.E.2d 11422 (Ind. App. 2001)] that sheriff was liable for sexual assault allegedly committed on female jail inmate but that the county commissioners were not, following settlement of the case, except for a portion of the opinion stating that consent by the inmate was not available as a defense in the civil lawsuit, just as it was not available, under state law, I.C. Sec. 35-44-1-5(b) to a criminal charge of sexual assault arising out of the same incident. Robins v. Harris, No. 84S01-0106-CV-00315, 769 N.E.2d 586 (Ind. 2002).

Sexual Offenders

     Persons civilly committed to state custody as "sexual predators" stated a claim for denial of due process based on purported "punitive" conditions of confinement and lack of mental health treatment. Hargett v. Baker, 2002 U.S. Dist Lexis 13721, 2002 WL 1732911 (July 26, N.D. Ill.).

Youthful Prisoners

     Settlement for confidential amount reached in wrongful death lawsuit by mother of child who died at reformatory camp when the 80-pound boy was allegedly crushed by a 300-pound counselor laying on top of him for five to ten minutes to restrain him after he got into a fight with another child. The 12-year-old had been ordered to attend the camp by juvenile courts. Ibarra v. Eckerd Youth Alternative Inc., No. 00-1159-CA (Marion County, Fla. Circuit Court), reported in The National Law Journal, p. B4 (July 15, 2002).