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Vol. 40 No. 4 July / August 2011
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Highlights of This Issue

Special Bulletin

  • United States Supreme Court Re-Affirms Free Speech Rule for Municipal Liability Involving Police Chief Grievances

United States Supreme Court

  • Pending Case on Use of Global Positioning Devices (GPS) by Law Enforcement: Crucial Case for Law Enforcement Practices
  • Retroactivity of Search and Seizure Decisions
  • Miranda Custody Determinations for Juveniles
  • Use of Substitute Forensic Witness in DUI Cases Violates Sixth Amendment
  • Law Enforcement Civil Liability: Qualified Immunity Defense Does Not Depend on the Motive of a Government Defendant

Federal and State Decisions

  • Arrest, Search and Seizure Issues: search; what constitutes; GPS devices; warrantless seizure; contraband in plain view; shrink-wrapped package; right to privacy; internet subscriber information; stop and frisk; reasonable suspicion; mundane actions; outline of gun in pocket; gravity knives; officer’s testimony; consent; voluntariness; car passenger
  • Interrogation Issues: custody; pre-custodial investigatory questioning; pre-arrest interview; hope of benefit; offer of counseling; juveniles; school context; police officer as school security officer; adequacy of warnings; right to counsel; use of Miranda warning card; two-step interrogation process; substantial break between statements; public safety exception; officer safety; defendant in handcuffs; waiver; appeal to be “honest”; probation revocation hearings; defendant’s attempt to broker a deal
  • Crimes; Evidence: weapons in proximity to drugs; expert testimony; harassment; threatening officers and families; police defendant; theft of government property; weapon sentencing enhancement; DUI; “control” of vehicle; grabbing steering wheel; identification evidence; cross-racial identifications; need for special jury instructions
  • Civil Liability/Personnel Law: false arrest; insulting police officer; free speech; false imprisonment; official immunity; assault and battery; vicarious liability of city; excessive force; use of Taser on misdemeanant arrestee; pulling driver from car; deadly force; high speed pursuit; qualified immunity; claim that motorist threatened officer; police discipline; forging work status medical records; police disability discrimination; light duty policy for disabled officers


    Special Bulletin
    United States Supreme Court
    Arrest, Search and Seizure
    Crimes; Evidence
    Civil Liability/Personnel Law
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Special Bulletin

Special Bulletin: United States Supreme Court Re-Affirms Free Speech Rule for Municipal Liability Involving Police Chief Grievances; Only Matters of Public Concern Are Protected by Constitution.
Borough of Duryea v. Guarnieri, No. 09-1476

After a municipality fired its police chief, he filed a union grievance that led to his reinstatement. When the city council later issued directives instructing the chief on how to perform his duties, he filed a second grievance, and an arbitrator ordered that some of the directives be modified or withdrawn. The chief then filed suit under 42 U. S. C. § 1983, alleging that the directives were issued in retaliation for the filing of his first grievance, thereby violating his First Amendment “right ... to petition the Government for a redress of grievances”; he later amended his complaint to allege that the council also violated the Petition Clause of the U.S. Constitution by denying his request for overtime pay in retaliation for his having filed the § 1983 suit. The District Court instructed the jury, inter alia, that the suit and the grievances were constitutionally protected activity, and the jury found for the chief. Affirming the compensatory damages award, the Court of Appeals held that a public employee who has petitioned the government through a formal mechanism such as the filing of a lawsuit or grievance is protected under the Petition Clause from retaliation for that activity, even if the petition concerns a matter of solely private concern. In so ruling, the court rejected the view of every other federal Circuit Court of Appeals to have considered the issue that, to be protected, the petition must address a matter of public concern.

The United States Supreme Court ruled that a government employer’s allegedly retaliatory actions against an employee do not give rise to liability under the Petition Clause unless the employee’s petition relates to a matter of public concern, reversing and remanding. The Court invoked the rule of Connick v. Myers, 461 U.S. 138 (1983) to the effect that a public employee suing his employer under the First Amendment’s Free Speech Clause must show that he spoke as a citizen on a matter of “public concern,” rather than on a matter of personal concern or interest. The Court saw no reason to change the public concern rule for Petition Clause cases and noted that grievance-based cases usually are personal matters rather than public concern matters.


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