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

Assault and Battery: Handcuffs

     A genuine issue of material fact existed as to whether officers should have known, objectively, that they were putting the handcuffs on a detained person so tightly that they would cut into her skin and cause permanent damage, but officers' subsequent use of force to push detainee to her knees and place her in restraints at a hospital where she was involuntarily admitted was not excessive. Threlkeld v. White Castle Systems, Inc., 201 F. Supp. 2d 834 (N.D. Ill. 2002).

Attorneys' Fees: For Plaintiff

     Wife of man shot and killed by police officer who received a jury award of $111,000 subsequently reduced in $25,000 in federal civil rights lawsuit is awarded $111,836.25 in attorneys' fees and $7,109.99 in costs. She was not entitled to attorneys' fees for post-judgment motions and appeal when she did not prevail in those efforts. Tinch v. City of Dayton, 199 F. Supp. 2d 758 (S.D. Ohio 2002).

Defenses: Notice of Claim

     Arrestee's letter to county attorney's office stating his intention to sue the county police department for injuries incurred during his arrest was insufficient to satisfy the notice requirements of Maryland's Local Government Tort Claims Act, Md. Code. Courts and Judicial Proceedings, Sec. 5-304(a) when the letter indicated that the arrest was made by town police officers and did not state what action, if any, was taken by county police officers. Lanford v. Prince George's County, Md., 199 F. Supp. 2d 297 (D. Md. 2002).

Defenses: Judicial Bias

     Trial judge did not abuse its discretion in denying plaintiff arrestee's motion that he recuse himself. Plaintiff only made the allegation of judicial bias "well after judgment" against him in his federal civil rights lawsuit against arresting officers, and only asserted his claim of bias in a "conclusory manner" without stating any facts that would convince a reasonable person that personal or extrajudicial bias existed. Wilson v. Holt, #01-5298, 35 Fed. Appx. 189 (6th Cir. 2002).

Defenses: Qualified (Good-Faith) Immunity

     A reasonable police officer would have known that shooting a motorist in the back during a routine traffic stop when he posed no immediate threat to the officer and was not attempting to flee was an excessive use of force, precluding qualified immunity. Appeals court had no jurisdiction to review the trial court's determination, in denying qualified immunity to officer, that there were factual issues as to whether the officer shot the motorist in the back. Lewis v. Boucher, #01-1584, 35 Fed. Appx. 64 (4th Cir. 2002).

     Officers who made a warrantless entry into the plaintiff's home in February of 1999 to make a "welfare check" were entitled to qualified immunity in the homeowner's federal civil rights lawsuit when the law in the federal appeals circuit on that date on the police officers' community caretaking function to respond to emergency situations was not clearly established on date, but was instead subsequently decided in United States v. Cervantes, 219 F.3d 882 (9th Cir. 2000), cert. denied, 532 U.S. 9122(2001). Humphrey v. Lane County, #00-36036, 35 Fed. Appx. 538 (9th Cir. 2002).

Defenses: Sovereign Immunity

     The U.S. government has not waived sovereign immunity for a Fourth Amendment lawsuit against the U.S. Marshal Service and the Marshal in his official capacity. Curtis v. Pracht, 202 F. Supp. 2d 406 (D. Md. 2002).

Expert Witnesses

     Trial judge rules, in excessive force case involving off-duty officer, that expert witness could provide testimony concerning the proper police procedures to be followed and how and when an officer should decide to go from off-duty to on-duty status, but could not state a specific opinion about the specific facts of the case. The jury, the judge ruled, could determine on its own whether or not the officer kicked the plaintiff in the head. McCloughan v. City of Springfield, 208 F.R.D. 236 (C.D. Ill. 2002).

False Arrest/Imprisonment: No Warrant

     Officer did not violate the rights of a man attending the Timothy McVeigh trial for bombing the Oklahoma City federal building when he handcuffed him, transported him two blocks away, and questioned him, given the detainee's known criminal history, including arrests for mob action and possession of explosives, and his prior temporary commitment to a mental health facility. Officer's action was a valid investigatory stop and not an arrest requiring probable cause. Federal court clerk was entitled to absolute immunity for providing police officer with information about detainee for purposes of courtroom security. Bell v. Manspeaker, #00-1415, 34 Fed. Appx. 637 (10th Cir. 2002).

     Officers did not violate motorist's Fourth Amendment rights by arresting him for obstruction of traffic and possession of a controlled substance even if they did not know what the powdery substance found in vehicle was. Officers clearly had probable cause for arrest for obstruction of traffic when motorist was found "asleep" at the wheel of his car in the street. Ochana v. Flores, 199 F. Supp. 2d 817 (N.D. Ill. 2002).

     Officers had probable cause to make an arrest for disturbing the peace when the arrestee had interfered with a traffic investigation, ignored instructions to return to a house, and used profanity in a loud voice. Arrestee's subsequent acquittal did not alter the result. Merritt v. City of Oakdale, No. 01-1533, 817 So. 2d 487 (La. App. 3d Cir. 2002).

False Arrest/Imprisonment: Warrant

     Police officer did not act in an unreasonable manner by including, in an affidavit for an arrest warrant, statement by an informant that were contradicted by some other evidence, when there was also substantial evidence corroborating the informant's statements. Carter v. City of Philadelphia, #00-3671, 35 Fed. Appx. 36 (3rd Cir. 2002).

     Officers did not violate the Fourth Amendment when they took the arrestee into custody under a facially valid warrant, ignoring his protests that he had already served a sentence for the probation violation for which the warrant was issued. Peacock v. Mayor and City Council of Baltimore, 199 F. Supp. 2d 306 (D. Md. 2002).

Firearms Related: Intentional Use

     Officers were not entitled to summary judgment when there were disputed issues of fact including discrepancies between their stories as to what transpired after they chased a suspect into a field and then shot and killed him, allegedly believing (mistakenly) that he was armed. Wilson v. City of Des Moines, Iowa, #01-290681, 293 F.3d 447 (8th Cir. 2002).

EDITOR'S CASE ALERT:

     Police detective did not violate motorist's rights by shooting and killing him after he attacked the detective and had gained the upper hand in a physical fight in which he was attempting to obtain possession of the detective's gun. Federal appeals court overturns trial court's denial of summary judgment for detective, and rejects argument that detective's supposed tactical errors in the confrontation made his use of force unreasonable. Billington v. Smith, #00-36062, 292 F.3d 1177 (9th Cir. 2001).

First Amendment

     Ordinance barring "religious or political activities" in municipal amphitheater violated the First Amendment and a preliminary injunction against its enforcement would be issued. Firecross Ministries v. Municipality of Ponce, 204 F. Supp. 2d 244 (D. Puerto Rico 2002).

     Village ordinance, which made it a misdemeanor to engage in door-to-door "canvassing" without first obtaining a permit and registering with the mayor's office, violated the First Amendment in preventing religious "witnessing" and anonymous political speech. Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, #00-1737, 122 S. Ct. 2080 (2002).

     Police department study concluding that concentrations of "adult" entertainment establishments are associated with higher crime rates in surrounding communities was reasonably relied on by city in enacting ordinance prohibiting such enterprises within 1,000 feet of each other or within 500 feet of a religious institution, school, or public park. City of Los Angeles v. Alameda Books, Inc., #00-799, 122 S. Ct. 1728 (2002).

Governmental Liability: Policy/Custom

     Sheriff's policy, far from causing an unlawful arrest of the plaintiff on charges of impersonating an officer and selling alarm systems without a license, was a "textbook example" of proper arrest procedure, with the sheriff instructing his deputy to consult with a prosecutor as to whether the elements of the offenses appeared to be present and then, if so, obtain an arrest warrant from a magistrate. Deputy was also entitled to qualified immunity, and subsequent dismissal of charges against arrestee did not alter the result. Gantt v. Whitaker, 203 F. Supp. 2d 503 (M.D.N.C. 2002).

     Plaintiff's claim that officer struck him with a police car, beat him with a night stick while he was handcuffed, and smacked his face on the side of the car while placing him in it, even if true, did not state a claim for federal civil rights liability against the city when there was no allegation of a governmental policy or custom which caused the alleged harm. The plaintiff's claim was also time-barred under Kentucky's one-year statute of limitations, since that statute began to run on the date of the arrest, and he filed his lawsuit more than one year later. Watson v. Baxter, #01-5971, 35 Fed. Appx. 118 (6th Cir. 2002).

Malicious Prosecution

     Reversal of criminal convictions for larceny and unlawful practice of law on the basis that the Attorney General did not have the authority to prosecute the accused under the state law was not a "favorable termination" for the accused for purposes of a malicious prosecution lawsuit when there was probable cause for the criminal prosecution and the accused was indicted by a grand jury. Romero v. State of New York, 742 N.Y.S.2d 701 (A.D. 2002).

Off-Duty/Color of Law

     Off-duty sheriff's deputies, in making a "mass purchase" of copies of a weekly community newspaper which published an article critical of the sheriff on the night before the vote on his re-election, did not act "under color of state law" for purposes of a federal civil rights lawsuit claiming violation of First, Fourth and Fourteenth Amendment rights. Sheriff's contribution of money towards the mass purchase and expression of his approval of the action was also not an act under color of state law. Rossignol v. Voorhaar, 199 F. Supp. 2d 279 (D. Md. 2002).

Police Plaintiff: Defamation

     Police officers could not recover damages for defamation against television network which put African-American "testers" in an expensive car on the road in order to determine whether the officers would stop them, and then surreptitiously recorded and broadcast the resulting stop on television under the title "Driving While Black." Hornberger v. American Broadcasting Companies, Inc., 799 A.2d 566 (N.J. Super. A.D. 2002).

Police Plaintiff: Fireman's Rule

     City could sue transit district in California to recover benefits paid to officer injured on the job when a railroad crossing arm broke and struck him on the head, and officer could pursue personal injury claims as well. Firefighter's rule did not bar recovery when statutory "independent cause" exception to the rule applied. Negligence which allegedly caused the officer's injury was not the same as the one that prompted the officer's presence at the scene in the first place. Vasquez v. North County Transit District, #01-55326, 01-55415, 292 F.3d 1049 (9th Cir. 2002)

Procedural: Appeal

     Members of a class who are not named class representatives may still appeal settlements of federal class action lawsuits. Devlin v. Scardelletti, #01-417, 122 S. Ct. 2005 (2002).

Procedural: Evidence

     Jury was presumed to have followed trial judge's instructions that lawyers' statements and arguments were not evidence, so that alleged misconduct by defendant police officers' lawyer in giving inference to the jury about items not in evidence during closing arguments was insufficient to support a reversal of the jury's verdict for the defendants in a homeowner's federal civil rights lawsuit over alleged unreasonable search of her house under a warrant. Jones v. Williams, #00-56929, 35 Fed. Appx. 424 (9th Cir. 2002).

Procedural: Section 1983 in General

     Indigent plaintiff had no constitutional or statutory right to effective assistance of counsel in his Section 1983 excessive force lawsuit, so that any error the trial judge made in failing to appoint a substitute lawyer was harmless and jury's award for defendants upheld on appeal. Plaintiff's only available remedy for alleged ineffective assistance of counsel would be a lawsuit for legal malpractice. Taylor v. Dickel, #01-2102, 293 F.3d 427 (8th Cir. 2002).

Racial Discrimination

     Employee fired from her job after police detective allegedly falsely told her employer that she had been identified as using a credit card from a co-employee's stolen wallet did not present any evidence that the detective was motivated by racial animosity towards her as an African-American. Detective was also not liable, in any way, for her firing, which was the independent decision of her employer and did not involve governmental action. Freeman v. City of Hackensack, 200 F. Supp. 2d 458 (D.N.J. 2002).

Search and Seizure: Home/Business

     Officer did not act improperly in obtaining a search warrant for a residence, based on informant's identification of a resident as being involved in a counterfeiting operation, despite the fact that the informant's identification subsequently turned out to be mistaken. Other officers participating in the search reasonably relied on the facial validity of the search warrant. Ferguson v. City of Louisville, 199 F. Supp. 2d 625 (W.D.Ky. 2002).

     City could not be held liable for shooting and killing of apartment occupant following allegedly unconstitutional warrantless entry. Evidence of eleven prior incidents of warrantless searches of residences by a gang task force was insufficient to establish the existence of a municipal custom of warrantless searches of residences in violation of the Fourth Amendment. Appeals court also rejects claim for liability based on inadequate training theory. Pineda v. City of Houston, #01-20189, 291 F.3d 325 (5th Cir. 2002).

     Police officers acted in a reasonable manner for purposes of qualified immunity in reading warrants of attachment for contempt as allowing them to enter his motel room when they stated that they could be served in the daytime in a public place when it was not clear under prior Idaho law whether the restrictions were to be read "conjunctively or disjunctively." Plaintiff was also barred under the doctrine of collateral estoppel from relitigating the issue of whether the officers complied with the "knock and announce" rule when it was determined at criminal trial suppression hearing that they had. Hall v. Tudbury, #00-35831, 35 Fed. Appx. 428 (9th Cir. 2002).

     Disputed issues of material fact existed as to whether the mother of a resident's child consented to police detectives opening and damaging a locked safe in his home and whether a reasonable officer would have considered her authorized to do so, precluding qualified immunity for the detectives in the resident's federal civil rights lawsuit for the alleged unlawful search of his house and locked safe. Smith v. Heimer, #02-1042, 35 Fed. Appx. 293 (8th Cir. 2002).

Age Discrimination - Entry

     The fact that a police applicant is presently too old under state law to be appointed does not prevent him from recovering for race discrimination, as he was under the maximum age when he was not hired. O'Neal v. City of New Albany, #00-3091, 2002 U.S. App. Lexis 11740 (7th Cir. 2002).

Age Discrimination - Termination / Mandatory Retirement

     An older male employee who resigned, after repeatedly receiving pamphlets about aging and erectile dysfunction from coworkers, can bring an age bias claim, but not a sex discrimination claim. Pamphlets were in bad taste, but were not severe enough to create a hostile work environment claim. He can maintain a constructive discharge claim for an ADEA violation. Keown v. Richfood Holdings, #01-2156, 2002 U.S. Dist. Lexis 10835 (E.D.Pa. 2002).

Arbitration Procedures

     Michigan appeals court affirms an arbitration award reinstating a jail officer. Conduct was not severe enough to warrant judicial interference. Police Officers. Assn. of Mich. v. Co. of Manistee, #226909, 250 Mich.App.339, 645 N.W.2d 713, 2002 Mich. App. Lexis 823 (Mich. App. 2002). Where the American Arbitration Association deviated from the arbitrator selection process in the employment agreement, and the employee did not timely object, the objection was waived and the award is valid. Brook v. Peak Intern., #01-50339, 2002 U.S. App. Lexis 11627 (5th Cir. 2002).

Attorney-Client Confidentiality & Ethics

     Michigan appeals court holds that memoranda by in-house legal counsel "is clearly covered by the attorney-client and work-product privileges," and does not lose its privileged character even if another court orders production. Leibel v. General Motors Corp., #224734, 250 Mich. App. 229, 2002 Mich. App. Lexis 302 (Mich. App. 2002).

Back Pay Claims and Awards

     Massachusetts Appeals Court concludes that a police officer who was suspended for threatening and stalking his girlfriend, and later indicted on drug charges while on suspension, is entitled to back pay for the suspension period because the stalking charges were dropped. Brittle v. City of Boston, #99-P-893, 54 Mass.App. 820, 768 N.E.2d 576, 2002 Mass. App. Lexis 738 (2002).

Bill of Rights Laws

     California appellate court holds that the state's "Bill of Rights" law requiring accused officers to be given all "reports" pertaining to the I-A investigation includes notes and recordings made by investigating officers. San Diego P.O.A. v. San Diego, #D037812, 2002 Cal. App. Lexis 4145, 02 C.D.O.S. 5008 (Cal. 4th App. Dist. 2002).

Collective Bargaining - In General

     The President has exempted certain Dept. of Justice personnel from collective bargaining rights under 5 U.S. Code Ch. 71. The affected employees have intelligence, counterintelligence, investigative, or national security work as a primary function. Amendment to Executive Order No. 12171.

Collective Bargaining - Duty to Bargain

     The Federal Labor Relations Authority holds that management has no duty to bargain over a union proposal to limit the number of people who would have access to home phone numbers, as the proposal would interfere with management's right to assign work. AFGE L-2280 and Veterans Affairs Med. Ctr., 57 FLRA No. 158 (FLRA 2002).

Death Benefits

     New law allows federal benefits for designated life insurance beneficiaries, including domestic partners, of unmarried and childless police officers or firefighters who are killed in the line-of-duty. The amendment to the Omnibus Crime Control and Safe Streets Act of 1968 removes a condition that payment of the $250,000 benefit is limited to the spouse or children of the deceased. The amendment also extends survivor death benefits to chaplains volunteer or public fire or police departments. The law now allows same and opposite gender domestic partners to receive survivor benefits if they are listed as life insurance beneficiaries, and there is no surviving spouse or children.. H. R. 3297 enacted as Pub. L. No. 107-196 (6-24-2002).

Defamation

     Public official was not entitled to a court order compelling a reporter to disclose his source for an allegedly defamatory article. Weinberger v. Maplewood Review, #C7-01-2021, 2002 Minn. App. Lexis 711 (Minn. App. 2002).

EDITOR'S CASE ALERT:

Disciplinary Interrogation - Abusive Interviews

     Federal court enjoins an internal investigation interview of an officer who is suing superiors and the city for gender bias and retaliation. The proposed questioning was viewed as retaliatory and likely to interfere with the progress of the discrimination lawsuit. Karmel v. City of N.Y., #00 Civ. 9063, 200 F.Supp.2d 361, 2002 U.S. Dist. Lexis 8056, 88 FEP Cases (BNA) 1194 (S.D.N.Y. 2002).

Disciplinary Offenses - In General

     Third Circuit holds that a corrections officer has a legal duty to intervene and prevent the excessive use of force, even if caused by supervisors or superior officers. "The duty to uphold the law does not turn upon an officer's rank." Smith v. Mensinger, #99-1382, 2002 U.S. App. Lexis 11678 (3rd Cir. 2002).

Disciplinary Punishment - In General

     Seventh Circuit upholds the termination of a police officer who patronized prostitutes while on duty, falsified his departmental health appraisal, and consumed alcohol while on duty. Krocka v. Police Bd. of Chicago, #1-00-2639, 327 Ill.App.3d 36, 762 N.E.2d 577, 2001 Ill. App. Lexis 933 (7th Cir. 2001).

Discovery, Publicity and Media Rights

     Florida appeals court holds that private or personal e-mails sent or received by public employees, using a city computer, do not become "public records" for the purpose of release to the news media. Times Publishing Co. v. City of Clearwater, #2D01-3055, 2002 Fla. App. Lexis 9414 (Fla. App. 2d Dist. 2002). Drug Screening and Specimen Testing A police officers' federal challenge to his employer's drug and alcohol screening program failed. Byrne v. Mass. Bay Transp. Auth., 196 F.Supp.2d 77 (D.Mass. 2002).

First Amendment Related

     Third Circuit affirms injunction against a police chief who required subordinates to obtain his approval before appearing as an expert witness in civil or criminal cases, even if uncompensated. Swartzwelder v. McNeilly, #01-1085, 2002 U.S. App. Lexis 14556 (3rd Cir. 2002).

Free Speech

     Federal appeals court rejects the lawsuit of a state police chief who was fired for opposing a subordinate from continuing to serve as the deputy chief. It was insubordination for the chief, whose position requires loyalty, to speak on job-related issues, in a manner contrary to the position of his employer. Rose v. Stephens, #00-6542, 291 F.3d 917, 2002 U.S. App. Lexis 10581, 2002 FED App. 0194P, 18 IER Cases (BNA) 1147 (6th Cir. 2002).

     Supreme Court declines to review a holding that a county did not violate a worker's Free Speech by suspending him for expressing a "negative attitude and personal antagonism" toward local and state policies. Michael v. St. Joseph Co., 259 F.3d 842, 2001 U.S.App. Lexis 17268 (7th Cir.); cert. den. #01-1441, 122 S.Ct. 2328, 2002 U.S. Lexis 4055, 70 U.S.L.W. 3741 (2002).

Grievance Procedures

     Appeals court reverses a grievance determination because the Step III hearing officer was a subordinate of the Step II responder. An evidentiary hearing by the Merit Board could have cured the procedural defect. Mayer v. Montgomery Co., #2224 Sept. 2000, 143 Md. App. 261, 794 A.2d 704, 2002 Md. App. Lexis 51 (Md.Sp.App. 2002).

Handicap/ Abilities Discrimination - In General

     Employers with less than 15 workers are subject to discrimination provisions of §504(d) of the Rehabilitation Act they are recipients of federal assistance. Schrader v. Ray, 00-5224, 2002 U.S. App. Lexis 14344 (10th Cir. 2002).

Handicap Laws / Abilities Discrimination - Inmates / Prisoners

     Supreme Court holds that punitive damages are not a valid remedy in private suits against public entities under Title II of the ADA and §504 of the Rehabilitation Act. Case involved a disabled prisoner who was injured in a transport van. Barnes v. Gorman, #01-682, 122 S.Ct. 2097, 2002 U.S. Lexis 4421, 70 U.S.L.W. 4548 (2002).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Appeals court holds that a rejected LAPD applicant with an artificial leg was not protected under California's disability discrimination law. "The police department is the sole judge of whether it wishes to assume the risk of hiring an officer whose prosthetic leg may rotate or, even worse, fall off while he is running on uneven ground, climbing six-foot fences, jumping over obstacles, or climbing an embankment," Christensen v. City of Los Angeles, #B149031, 2002 Cal. App. Unpub. Lexis 1680 (Cal.App. 2002).

Injuries to Employees

     South Carolina Supreme Court declines to adopt the "Firefighter's rule," a common law doctrine which limits or prevents lawsuits brought by police, fire and corrections officers against persons or businesses that have negligently caused their injury. Minnich v. Med-Waste, #25468, 2002 S.C. Lexis 91 (2002).

Marital Status Discrimination

     Terminating an employee because of adultery is not marital discrimination prohibited by state law. Such laws protect status, not conduct. Veenstra v. Washtenaw Country Club, #117985, 466 Mich. 155, 645 N.W.2d 643, 2002 Mich. Lexis 2888 (Mich. 2002).

Moonlighting (Secondary Employment)

     Arbitrator overturns a chief's ban on outside employment as a private investigator. Previously, the grievant had been allowed to perform that work and the bargaining agreement contained a past practice clause. City of Columbus and FOP L-9, FMCS Case #01/07379, 116 LA (BNA) 1672 (Duff, 2002).

National Origin Discrimination

     Federal appeals court upholds the termination of a Polish officer who was unable to prove others have been treated differently based on similar misconduct. Glebocki v. City of Chicago, #01-1243, 2002 U.S. App. Lexis 4816, 32 Fed. Appx. 149 (7th Cir. 2002).

Obesity

     Federal court dismisses a suit filed by an overweight officer who "was humiliated and embarrassed" by having to take a fitness exam, under the threat of disciplinary action. Bunyon v. Henderson, #01-242, 2002 U.S. Dist. Lexis 11435 (D.D.C. 2002).

Occupational Safety & Disease

     London's Metropolitan Police Commissioner Sir John Stevens and his predecessor Lord Condon will stand trial, charged at Southwark Crown Court, for failing to ensure the "health, safety and welfare" of officers after police constables fell through roofs as they chased suspects. Evening Standard (London) June 19, 2002. http://www.thisislondon.co.uk

Pay Disputes - Overtime Claims

     Arbitrator sustains management's reshuffling of corrections officers to avoid paying overtime. Actions did not violate the contractual duty to maintain a safe work environment. Federal Bureau of Prisons and AFGE L-171, FMCS Case #01/11034, 116 LA (BNA) 1718 (Moreland, 2002).

Privacy Rights

     Supreme Court holds that the Family Educational Rights and Privacy Act of 1974, 20 U.S. Code §1232g, which prohibits the release of students education records without parental written consent, did not create an independent right to sue for violations, and §1983 cannot be used as a piggyback vehicle to prosecute an action for damages. Gonzaga Univ. v. Doe, #01-679, 122 S.Ct. 2268, 2002 U.S. Lexis 4649 (2002).

Racial Harassment

     New Jersey State Police pays $5 million to settle a suit filed by 13 black state troopers who were harassed and denied promotions. Individual awards range from $225,000 to $500,000, plus attorney's fees. Davis v. New Jersey Dept. of Law and Public Safety, #L-2229-97 (N.J. Mercer Co. Super. 2002); N.J. Law Journal (7-9-2002); prior interim opin. at 327 N.J. Super. 59, 742 A.2d 619, 1999 N.J. Super. Lexis 424 (1999).

Race: Reverse Discrimination

     Federal appeals court rules against white police officers who challenged the promotion of minority officers under an affirmative action plan, which remedied past discrimination. Although promoting 20 black, Hispanic, and female police officers because of their race, national origin or gender was discriminatory, the need for the promotions outweighed the impact on the white male officers. Reynolds v. City of Chicago, #00-3771, 2002 U.S. App. Lexis 12274 (7th Cir. 2002).

Reductions in Force

     Arbitrator orders a sheriff to rehire three deputies who were laid-off for financial reasons. The county commissioners failed to justify a budget cut, and sheriff was using special deputies to replace the work performed by laid off bargaining unit members. Jackson Co. Sheriff and FOP, FMCS Case #01/16348, 116 LA (BNA) 1753 (Kindig, 2002).

Religious Discrimination

     Federal court in NY holds that Muslim firefighters lacked legal standing to challenge management's choice of an Islamic chaplain, but the Islamic Society of NYC firefighters had standing to challenge the selection under the Establishment Clause of the Constitution. Islamic Soc. of Fire Dept. Personnel v. City of N.Y., #00 CV 3705, 2002 U.S. Dist. Lexis 10699 (E.D.N.Y. 2002).

Residency Requirements

     Members of the Wyoming National Guard who were dismissed for failing to meet the state's newly enacted residency requirements are entitled to reinstatement because the requirement violates the Privileges and Immunities Clause. The decision is grounded on the fact that the National Guard is peculiarly a federal and state agency. Nelson v. National Guard Assn. (Wyoming), #00-8039/93, 2002 U.S. App. Lexis 13267 (10th Cir. 2002).

Sexual Harassment - In General

     A corrections sergeant who alleged seven instances of hostile or abusive comments on her gender and pregnancy adequately pled a claim for hostile work environment discrimination. Gorski v. N.H. Dept. of Corrections, #01-1995, 290 F.3d 466, 2002 U.S. App. Lexis 9828 (1st Cir. 2002).

Sexual Harassment - Verdicts, Settlements & Indemnity

     Federal judge sets aside a $3 million verdict for sexual harassment of a woman police officer as "grossly excessive;" damages reduced to $300,000. Spina v. Forest Preserve Dist. of Cook Co., #98-C-1393, 2002 U.S. Dist. Lexis 9818 (N.D.Ill. 2002). See our article in the Feb. 2002 issue.

Stress Related Claims and Defenses

     California appeals court denied a stress claim resulting from a reduction in force demotion. Injuries caused by "a lawful, nondiscriminatory, good faith personnel action" are not compensable under the state's workers' comp. laws. City of Oakland v. Workers' Compensation Appeals Board, #A095800, 02 C.D.O.S. 5208, 120 Cal.Rptr.2d 873, 2002 Cal. App. Lexis 4227 (Cal. App. 1st Dist. 2002).

Taxation

     IRS ruling provides that N.Y.C. accidental death benefits payable to a spouse are not includible in the gross estate of a police officer or firefighter because they are payable pursuant to state laws, do not represent the value of contributions to a pension fund, and the deceased had no interest in them at the time of death. Rev. Rul. 2002-39, Internal Revenue Bulletin 2002-27.

Unemployment Compensation

     Claims State Unemployment Board should have denied benefits to an employee who was found fired for misconduct by the Board of Fire and Police Commissioners. Doctrine of Collateral Estoppel applies. Vil. of Oak Park v. IL Dept. of Emplmt. Security, #1-01-3113, 2002 Ill. App. Lexis 535 (Ill. App. 1st Dist. 2002).

Uniforms, Clothing and Equipment

     Cook County (Chicago) Sheriff modifies his uniform headwear regulations to accommodate two deputies, a Jewish male and a Muslim female. In re Crystal Clark and Larry Davidson (claimants) and Michael Sheehan, Cook Co. Sheriff (respondent). Source: Chicago Sun-Times (7/7/02).

Whistleblower Requirements and Protection

     Assistant U.S. Attorney wins $200,000 in punitive damages against the Justice Dept. for imposing a pretextual five-day suspension after he contacted a member of Congress about hazardous waste contamination at an airport. Environmental whistleblowers are protected under 33 U.S. Code §1367, 42 U.S. Code §6971 and §7622. Sasse v. Dept. of Justice, #1998-CAA-7, 40 (1962) G.E.R.R. (BNA) 557 (ALJ decis. 2002); facts and jurisdiction at ARB #99-053, 2000 DOL Ad. Rev. Bd. Lexis 94 (DoL-Adm.Rev.Bd. 2000).

Chemical Agents

     Prison officials use of pepper spray to quell a fight in a cell between two prisoners in which one threatened to kill the other did not constitute an excessive use of force, even if a second application of pepper spray was administered after the prisoners began to cough, but before they were restrained. Appeals court rules, however, that officials were not entitled to qualified immunity from a deliberate indifference to medical needs claim by other prisoners in the cell block that the vapors drifted into their cells and they were not given showers or medical attention for four hours. Clement v. Gomez, # 01-16088, 2002 U.S. App. Lexis 15659 (9th Cir.).

     Federal appeals court upholds award of $10,002 against a correctional officer who allegedly "orchestrated" an unnecessary soaking with pepper spray of two inmates confined to their cell five hours after a prison riot had been quelled. Officer allegedly instructed a co-worker to soak the cell with pepper spray after one of the inmates questioned his alleged calling out "Niggers get naked." Lawrence v. Bowersox, #01-1813, 2002 U.S. App. Lexis 14657 (8th Cir.).

Death Penalty

     Prisoner sentenced to death was not entitled to a temporary restraining order based on his claim that prison officials planned to violate his right to privacy by permitting an "excessive number" of his victim's family members to view his execution and by improperly allowing recording equipment in the execution chamber. Prisoner did not show a substantial likelihood of success on his underlying federal civil rights claim. Coleman v. Wilkinson, No. 02AP-456, 770 N.E.2d 637 (Ohio App. 2002).

Defenses: Absolute Immunity

     Sheriff's investigator who prepared felony complaint and arrest report for county jail inmate accused of assaulting another prisoner was entitled to absolute prosecutorial immunity from the prisoner's false arrest claim, even though he was not an employee of the prosecutor's office, but rather of the sheriff's department, because the decision to file a criminal complaint and seek an arrest warrant were quasi-judicial and prosecutorial in nature. Goncalves v. Reynolds, 198 F. Supp. 2d 273 (W.D.N.Y. 22001).

Drug Testing

     Prisoners could not pursue their claim that convicting them of drug use in a disciplinary proceeding without a confirmatory drug test violated their right to due process when they had not previously had their disciplinary conviction set aside. Virginia state constitutional claim was barred by the statute of limitations, and states and their agencies and officials cannot be sued under the federal False Claims Act for allegedly obtaining federal funds for drug testing by falsely certifying that standards for testing were being followed. Alexander v. Gilmore, 202 F. Supp. 2d 478 (E.D. Va. 2002).

Employee Injury/Death

     Former employee of Texas correctional facility could pursue claim for occupational disability benefits for back injuries allegedly suffered when he slipped and fell on a wet floor as it was being mopped by an inmate. The risk of such an injury was a "risk or hazard" that was "peculiar to unique duties" as a food-service manager at the facility, for purposes of showing an entitlement to the claimed benefits. Langford v. Employees Retirement System of Texas, No. 03-01-0081-CV, 73 S.W.3d 560 (Tex. App.--Austin, 2002).

False Imprisonment

     Prisoner's claim contending that seventy days were unlawfully added to his Missouri state court sentence involved only interpretations of state law and therefore could not be pursued as a federal civil rights lawsuit under 42 U.S.C. Sec. 1983. Donaldson v. Purkett, #01-3262, 33 Fed. Appx. 233, 2002 U.S. App. Lexis 7393, 2002 WL 655549. (8th Cir.).

First Amendment

EDITOR'S CASE ALERT:

     Federal appeals court orders further proceedings on prisoners' challenge to policy preventing them from viewing movies rated R or NC-17. Trial court, in rejecting prisoners' First Amendment claim, could not just rely on "common sense," but instead needed to do a "thorough analysis" of the relevant penological interest and the prohibition's relationship to it. Wolf v. Ashcroft, #01-1869, 2002 U.S. App. Lexis 14852 (3rd Cir. 2002).

     California prisoner's role as chairman of an Inmate Advisory Council established by state regulations was a First Amendment protected activity; appeals court overturns summary judgment for officers accused of issuing false administrative warnings against prisoner in retaliation for his activities. Summary judgment upheld, however, for officers who filed disciplinary charges against prisoner and hearing officer who convicted prisoner, even though particular disciplinary finding was subsequently overturned by the warden. McQuillion v. McKenzie, #00-15505, 35 Fed. Appx. 547 (9th Cir. 2002).

Inmate Property

     Federal civil rights claim over damage to television set mailed to inmate was properly dismissed because the plaintiff had an adequate state remedy available to him to address this alleged deprivation. The plaintiff prisoner's claim was also properly dismissed as frivolous for seeking $1.4 billion for the loss. Plaintiff prisoner also failed to show that he had exhausted available administrative remedies. Dunlap v. Fulghum, #01-6373, 35 Fed. Appx. 163 (6th Cir. 2002).

Jail Conditions: General

     County jail inmate's claim that he was forced to sleep on a mattress on the floor in a cold cell for six days that was regularly sprayed with insecticides was not sufficiently serious to state a claim for a violation of his constitutional rights. Wells v. Jefferson County Sheriff Department, #01-3575, 35 Fed. Appx. 142 (6th Cir. 2002).

Mail

     Prisoner could not pursue claim that alleged "tampering" with his legal mail concerning his ongoing lawsuit violated his right of access to the courts when it did not have an impact on the outcome of the case and he managed to receive a settlement that was satisfactory to him, but he could pursue claims as to whether prison officials had improperly opened his outgoing legal mail to the FBI and Justice Department without reason to do so, or had failed to deliver sixteen pieces of mail sent to him, returning them to senders without justification. Moore v. Gardner, 199 F. Supp. 2d 17 (W.D.N.Y. 2002).

Medical Care

     Physician and nurses at county detention facility were not liable for detainee's death, allegedly from alcohol withdrawal. Physician, far from exhibiting deliberate indifference, had trained the nurses concerning how to treat alcohol withdrawal, and nurse did not believe that detainee was suffering from such withdrawal, since he exhibited no signs of it other than shaking. Smith v. Lejeune, 203 F. Supp. 2d 1260 (D. Wyo. 2002).

     Prisoner who suffered a stroke after allegedly being deprived of his hypertension medication for a month could not recover for alleged violation of his Eighth Amendment rights in the absence of any expert medical testimony showing that the deprivation of the medication had anything to do with causing his stroke. Robinson v. Hager, #s. 01-2388, 01-3388, 292 F.3d 560 (8th Cir. 2002).

     Prisoner could not recover damages for sheriff's alleged denial of medical care for a spider bite or sheriff's alleged negligence in failing to adequately fumigate the facility. The record showed that the prisoner filed numerous grievances during the period in question, including one filed two days after the alleged spider bite, but never mentioned the bite or the need for medical treatment for it. Hardy v. Foti, No. 2001-CA-1257, 812 So. 2d 792 (La. App. 4th Cir. 2002).

     Prisoner was properly awarded $174,178 in damages for asserted delays in his treatment for glaucoma and skin cancer. Evidence showed that, despite his repeated grievances, treatment was delayed and required surgical removal of a lesion rather than cryosurgery and increased the future risk of skin cancer. Delay in treating glaucoma resulted in corneal swelling and might result in the loss of his eye. Caldwell v. District of Columbia, 201 F. Supp. 2d 27 (D.D.C. 2001).

Positional Asphyxia

     Correctional officers did not use excessive force in restraining a prisoner in his cell when he was obviously undergoing a mental breakdown of some sort and some level of force was needed to restore order, but deceased prisoner's estate could proceed with its claim that the officers were deliberately indifferent to his serious medical needs by failing to attempt to resuscitate him at once after they realized he was not breathing. Bozeman v. Orum, 199 F. Supp. 2d 1216 (M.D. Ala. 2002).

Prison Litigation Reform Act: Exhaustion of Remedies

     The fact that a former inmate was no longer a prisoner when he appealed the dismissal of his federal civil rights lawsuit for a failure to exhaust administrative remedies was irrelevant--the dismissal was proper because he was still a prisoner when he initially brought the lawsuit, and the facts showed that he failed to pursue his grievances through every available administrative route. Dixon v. Page, #01-1973, 291 F.3d 485 (7th Cir. 2002).

     Prisoner's initiation of an "informal" grievance concerning his alleged wrongful transfer from one facility to another was insufficient to meet his burden of exhausting available administrative remedies before pursuing a federal civil rights lawsuit when he did not complete the formal grievance procedure, but instead signed a form indicating that he was satisfied with the outcome of the informal process. Williams v. Jefferson County Circuit Court Clerk, #01-5885, 33 Fed. Appx. 763 (6th Cir. 2002).

     Inmate's failure to pursue a grievance against a particular prison official for allegedly filing a retaliatory report against him because of the prisoner's complaints about other officials results in a requirement that his federal civil rights claim against that official must be dismissed for failure to exhaust available administrative remedies. Richardson v. Hillman, 201 F. Supp. 2d 222 (S.D.N.Y. 2002).

     The U.S. Supreme Court's decision in Porter v. Nussle, 122 S. Ct. 983 (2002), ruling that claims of every sort relating to prison life--including claims for excessive force against an individual inmate--must satisfy the exhaustion of remedies requirement of the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e, applies retroactively to a case in which the complained of incident occurred before Porter was decided. Hemphill v. New York, 198 F. Supp. 22d 546 (S.D.N.Y. 2002).

Prisoner Suicide

     County was not liable to detainee's suicide in jail on the basis of alleged inadequately staffing when it had an effective policy of checking on suicidal inmates every fifteen minutes and an officer saw and spoke to the detainee 15 to 20 minutes prior to the time he was found hanging in his cell. Rapier v. Kankakee County, Illinois, 203 F. Supp. 2d 978 (C.D. Ill. 2002).

Procedural: Appeal

     Members of a class who are not named class representatives may still appeal settlements of federal class action lawsuits. Devlin v. Scardelletti, #01-417, 122 S. Ct. 2005 (2002).

Procedural: Jurisdiction

     Sheriff properly removed federal civil rights lawsuit filed by prisoner's estate in state court to federal court even when other defendants objected to removal when he did so before the other defendants had been served. Deputy's right to object to sheriff's removal of case to federal court was limited by statute, 28 U.S.C. Secs. 1146, 1147(c), and 1148. Schmude v. Sheahan, 198 F. Supp. 2d 964 (N.D. Ill. 2002).

Racial Discrimination

     Correctional officer's use of racial slur to prisoners was insufficient to support a federal civil rights claim for racial discrimination. His alleged comment that "all you black prisoners do is sit around trying to get out of prison," while not "polite," was not accompanied by "brutal or cruel acts that would have caused" the prisoners "legitimate concern for their personal safety or well-being," and therefore, while not condoned, failed to rise to the level of a constitutional claim. Pendelton v. Mills, 73 S.W.3d 115 (Tenn. App. 2001), permission to appeal denied by Tenn. Supreme Court, Feb. 11, 2002.

Religion

     Prison officials' designation of Saturday as cell cleanup day violated a Jewish inmate's First Amendment right to practice his religion, and no rational connection existed between the policy of designating Saturday-only cell-cleaning and the prison's interest in efficiency, safety, and security. Prison officials were, nevertheless, entitled to qualified immunity from liability as there was, at the time of the violation, prior to 1999, "virtually no guidance" in case law regarding the observance of the Jewish Sabbath in the context of prison work. Murphy v. Carroll, 202 F. Supp. 2d 421 (D. Md. 2002).

Search: Prisoners/Cells

     Hand abrasion that prisoner suffered during frisk search was insufficient to support a claim for excessive use of force. Prison Litigation Reform Act requirement that a prisoner show a physical injury in order to recover damages for mental or emotional harm applied even though plaintiff was no longer a prisoner when he filed suit. Cox v. Malone, 199 F. Supp. 2d 135 (S.D.N.Y. 2002).

Sexual Assault

     Female prisoner who reported that she had been raped by a supervising deputy in the county jail failed to show that the county had a policy of ignoring sexual harassment and sexual assault complaints. While accused deputy was not disciplined following the county's own investigation, he was suspended when a subsequent state police investigation resulted in criminal charges against him, and the record showed three other cases in which a deputy had been disciplined for alleged sexual misconduct. Ford v. County of Oakland, #00-2140, 35 Fed. Appx. 393 (6th Cir. 2002).

Visitation

     Deputy could not be held liable for negligence in the use of force against a visitor during an argument among visitors over "cutting" in line, since his actions were intentional. Court also holds that county, sheriff's department, and sheriff were not responsible for visitor's alleged injuries. Smith v. County of Erie, 743 N.Y.S.2d 649 (A.D. 2002).