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Vol. 38 No. 4 Jul / Aug 2009
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Highlights of This Issue

Special Bulletin:
  • Fear of Litigation Did Not Justify Reverse Discrimination by City on Public Safety Promotional Exams

United States Supreme Court Action

  • Police Can Interrogate Defendants Who Have an Attorney If They Follow Miranda Rules of Warnings and Waiver
  • States Cannot Prevent Prisoners From Bringing Civil Rights Claims in State Courts
  • Employees Bear Full Burden of Proof on ADEA Claims
  • Noted in Brief: Collective Bargaining Agreements Can Require Arbitration of ADEA Claims; Right of Convicts to Test DNA Samples Denied; Laboratory Test Results; Strip Search of Students

Federal and State Decisions

  • Arrest, Search and Seizure Issues: search warrants; computer hard drive; delay; good faith; consulting prosecutor; execution; vehicles; parole warrants—police assistance; search incident to arrest; automobiles; Arizona v. Gant; stop and frisk; reasonable suspicion; anonymous caller; independent basis; refusal to consent to search; GPS tracking devices; consent; co-occupants; scope
  • Interrogation Issues: custody; home interview; implied waiver of Miranda rights; public safety exception; factors considered by courts
  • Crimes; Evidence; Defenses: juvenile curfews; constitutionality; police interests; identification evidence; suggestive showup; suggestive lineup; private action; entrapment; prior convictions
  • Trial Procedure: police witness; testimony about dispatcher’s information; reasons for traffic stop; police investigator
  • Civil Liability/Personnel Law Issues: liability for false arrest; seat belt violation; liability for invalid search warrants; qualified immunity; use of legal advisor; liability of sheriff for subordinate who served a general warrant; good faith defense; liability for excessive force; hobble device; pepper spray; handcuffing procedures; liability for arrestee’s death in jail; police discipline; reporting corruption; failure to follow chain of command; involuntary retirement


United States Supreme Court
Arrest, Search and Seizure
Crimes; Evidence; Defenses
Trial Procedure
Civil Liability / Personnel Law
Renewal Form; Internet Services
Special Bulletin
    Special Bulletin: Fear of Litigation Was Insufficient Basis for City to Discriminate Against White Public Safety Employees on Results of Promotion Tests by Refusing to Certify Their Test Results.
    Ricci v. De Stefano, Nos. 07-1428; 08-328 (2009).

    A city threw out the results of objective examinations to identify those firefighters best qualified for promotion to lieutenant and captain positions when the results showed that white candidates had outperformed minority candidates. White and Hispanic firefighters who passed the exams but were denied a chance at promotions by the city’s refusal to certify the test results sued the city and its officials, alleging that discarding the test results discriminated against them based on their race in violation of Title VII of the Civil Rights Act of 1964.

    In a 5-4 decision and an opinion written by Justice Kennedy the United States Supreme Court ruled that the city’s action in discarding the test results violated Title VII. Under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional, disparate impact on minorities, the employer must have a “strong basis in evidence” to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. All the evidence demonstrated that the city rejected the test results because the higher scoring candidates were white. Without some other justification, this express, race-based decision making was prohibited by Title VII. Merely because the city faced possible litigation if it had certified the test results did not satisfy the “strong basis in evidence” standard. A mere showing of a significant statistical disparity and nothing more was not a “strong basis in evidence” that the city would have been liable under Title VII had it certified the test results. The Court said that fear of litigation alone cannot justify the city’s reliance on race to the detriment of individuals who pass examinations and qualify for promotions. Discarding the test results in this case was impermissible discrimination under Title VII. The plaintiffs were entitled to summary judgment on their disparate-treatment claim.

    Justices Ginsburg, Stevens, Souter and Breyer dissented.


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