An electronic resource for law enforcement personnel, attorneys and others involved in law enforcement

An electronic resource for law enforcement personnel, attorneys and others involved in law enforcement

AELE provides unique resource for those involved in law enforcement, providing free publications and online back issues since 2000. It has a searchable library of more than 33,000 case digests organized into 700 + indexed topics. There are no advertisements, tracking "cookies" or popups on its website and users do not have to preregister. There is no time limit on research sessions and the contents of AELE’s online law library may be copied and pasted, saved or printed (except for commercial purposes).

AELE encourages readers to sign up for its e-mail alerts at http://www.aele.org/e-signup.html 

AELE also has a free search tool [http://www.aele.org/htdig/common/search.html] covering its database of more than 33,000 case summaries and offers access to its more than 33,000 case summaries, divided into 700 + topics.

1. Law enforcement civil liability at http://www.aele.org/law/Digests/civilmenu.html
2. Employment law and discipline at http://www.aele.org/law/Digests/emplmenu.html
3. Jail and prisoner legal issues at http://www.aele.org/law/Digests/jailmenu.html

The following items were posted in AELE’s May issue:

1. Article: Power Down: Tasers, the Fourth Amendment and Police Accountability, 91 N.C. Law Rev. 606 (Jan. 2013).

View at http://www.nclawreview.org/documents/91/2/mance.pdf

2. A new article appears in the AELE Monthly Law Journal.

* Public Protection -- Part One: The Physically Ill

Police officers inevitably run into individuals who are seriously ill, such as heart attacks, strokes, epileptic seizures, diabetic incidents, and any number of other health emergencies in which the lack of swift action may all too often mean the difference between life and death or permanent impairment and disability.

View at http://www.aele.org/law/2013-05MLJ101.html

3. The May 2013 issues of AELE's three periodicals have been uploaded.

The current issues, back issues since 2000, case digests since 1975, and a search engine are FREE. Everyone is welcome to read, print or download AELE publications without charge. The main menu is at: http://www.aele.org/law

*** Law Enforcement Liability Reporter ***

Nine cases are discussed in this issue, including false arrest, firearms related, restraint asphyxia, photographing an officer making an arrest, immigration issues and search & seizure.

View at http://www.aele.org/law/2013all05/LR2013MAY.html

*** Fire, Police & Corrections Personnel Reporter ***

Ten cases are discussed in this issue, including disability claims, Weingarten rights, standby pay, pensions, retaliation, exclusionary rule, and other issues.

View at http://www.aele.org/law/2013all05/FP2013MAY.html

*** Jail and Prisoner Law Bulletin ***

Ten cases are discussed in this issue, including inmate orthopedic shoes, classification as a Mexican Mafia member, fatal drug interactions, a Ponzi scheme, religious hairstyles, retaliation, punitive segregation, sexual assault and workers compensation.

View at http://www.aele.org/law/2013all05/JB2013MAY.html

4. Selected criminal law and procedure cases are at two other free websites.

http://www.fletc.gov/training/programs/legal-division/the-informer/informer-editions-2012/and http://www.kenwallentine.com/Xiphos.html

Agency required to comply with its own procedures in processing a disciplinary action

Agency required to comply with its own procedures in processing a disciplinary action
Hassan v New York City Dept. of Correction, 2013 NY Slip Op 02686, Appellate Division, First Department

In this appeal of a CPLR Article 78 decision by Supreme Court that sustained the New York City Department of Correction’s [DOC] finding that the individual [Appellant] was guilty of certain charges, the Appellant conceded that the Hearing Officer’s determination was supported by substantial evidence.

Rather, Appellant contended, the record before the Supreme Court was defective because it was incomplete in that it lacked a record of the disciplinary hearing, DOC’s answer, and a written statement by a Correction Officer that the Hearing Officer was required to show Appellant as required by “DOC Directive 6500R-B(III)(C)(25) and (26).”

The Appellate Division agreed, explaining that “it cannot be determined on this record whether the Hearing Officer's failure to show [Appellant] the written statement by [the Correction Officer] prejudiced Appellant's defense.

Accordingly, said the court, it was remanding the matter to Supreme Court and directed DOC “to submit an answer pursuant to CPLR 7804(d) and any appropriate submissions pursuant to CPLR 7804(e), including a record of the hearing and a written witness statement [by the Correction Officer].”

The ruling further provides that after DOC made such submissions to Supreme Court, Supreme Court is to determine if the failure to provide Appellant with these writings “was harmless error.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02686.htm

A state may deny access to records available to its citizens pursuant to its Freedom of Information Law to individuals not citizens of that state who make a FOIL request for such records

A state may deny access to records available to its citizens pursuant to its Freedom of Information Law to individuals not citizens of that state who make a FOIL request for such records

McBurney Et Al. v. Young, Deputy Commissioner and Director, Virginia Division of Child Support Enforcement, Et Al.U.S. Supreme Court 14-7206

A challenge to Virginia's Freedom of Information Act (FOIA), which grants only citizens of Virginia access to all public records, does not violate the Privileges and Immunities Clause of the U.S. Constitution was rejected by U.S. Supreme Court, affirming the ruling by the Court of Appeals, 4^thCircuit.

Mark J. McBurney and Roger W. Hurlbert, respectively citizens of Rhode Island and California, each requested documents under the Virginia FOIA. Their requests were denied because of their citizenship although such documents would have been provided to them had they been citizens of Virginia.

The court explained that Virginia’s Freedom of Information Act “does not regulate commerce in any meaningful sense, but instead provides a service that is related to state citizenship.” Accordingly, said the court, it did not violate any provision set out in the U.S. Constitution when it refused to furnish certain information otherwise available to citizens of Virginia that it denied the McBurney plaintiffs.

In the words of the court: Under the Privileges and Immunities Clause, "[t]he Citizens of each State [are] entitled to all Privileges and Immunities of Citizens in the several States." U. S. Constitution, Article IV, §2, Clause. 1. We have said that "[t]he object of the Privileges and Immunities Clause is to 'strongly . . . constitute the citizens of the United States [as] one people,' by 'plac[ing] the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned.' "… This does not mean, we have cautioned, that ‘state citizenship or residency may never be used by a State to distinguish among persons.’ … Nor must a State always apply all its laws or all its services equally to anyone, resident or nonresident, who may request it so to do."

The Supreme Court concluded that “Virginia's citizens-only FOIA provision neither abridges any of McBurney's or Hurlbert's fundamental privileges and immunities nor impermissibly regulates commerce,” thus the constitutional claims advanced by McBurney and Hurlbert failed.

The decision is posted on the Internet at:

http://www.supremecourt.gov/opinions/12pdf/12-17_d1o2.pdf

An employee is entitled to be defended at the employer’s expense notwithstanding that their action “while discharging their duties” violated a law, rule or regulation

An employee is entitled to be defended at the employer’s expense notwithstanding that their action “while discharging their duties” violated a law, rule or regulation

The Court of Appeals ruled that employees of the New York City Department of Education [DOE] who are sued for using corporal punishment are entitled to a defense provided by the City notwithstanding the fact that the employees' conduct violated a State regulation.

Both employees, paraprofessionals serving with the New York City schools, were defendants in civil suits brought by students who alleged that the employees hit them.

Although the employees do not dispute that the actions they were found to have committed violated a Rule of the Board of Regents, 8 NYCRR 19.5 (a), which prohibits corporal punishment, they asked the City to defend them in the civil actions brought against them.

The City of New York rejected their requests for it to defend them in the civil lawsuits. Supreme Court held that the City should provide for their defense; the Appellate Division reversed the Supreme Court’s ruling. The Court of Appeals reversed the Appellate Division’s determination.

The employees contended that they were entitled to having the City provide for their defense pursuant to Education Law §3028, which provides:

"Notwithstanding any inconsistent provision of any general, special or local law, or the limitations contained in the provisions of any city charter, each board of education, trustee or trustees in the state shall provide an attorney or attorneys for, and pay such attorney's fees and expenses necessarily incurred in the defense of a teacher, member of a supervisory or administrative staff or employee . . . in any civil or ciminal [sic] action or proceeding arising out of disciplinary action taken against any pupil of the district while in the discharge of his duties within the scope of his employment . . ." (Emphasis supplied by the Court of Appeals).

The court said the controlling issue is whether the actions that resulted in the students' lawsuits against the employees were taken "while in the discharge of [their] duties within the scope of [their] employment," as required by §3028. Although the City conceded that the employees were acting within the scope of their employment, it argued that the statutory words "discharge of . . . duties" have a more restrictive meaning, and that an employee who is violating his or her employer's regulations cannot be acting in the "discharge of [her] duties."

The Court of Appeals rejected the City's argument, explaining that "Scope of employment," "discharge of duties" and similar phrases have long been regarded as interchangeable, citing Joseph v City of Buffalo, 83 NY2d 141. Accordingly, the court concluded that the authors of Education Law §3028 “intended to provide a defense even where an employee's use of corporal punishment violated regulations.”

In the words of the Court of Appeals, “Section 3028 requires the City to provide an attorney not just in civil, but also in criminal cases — suggesting that the Legislature wanted even employees who engaged in highly questionable conduct to be defended at public expense. If the 1960 Legislature meant to exclude cases in which corporal punishment was forbidden by regulation — as it was in New York City when §3028 was enacted — it could have done so explicitly.”

The decision is silent with respect to the indemnification of the employees in the event either or both employees are held liable for damages in the civil actions giving rise to these appeals

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02775.htm