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Archive for February, 2010

Barrows v. City of Fort Smith, Arkansas, No. 09-756.

Facts

In June 1992, Jeffrey Barrows was hired as an officer with the Fort Smith Police Department. During his employment with the department, he rose from the rank of patrolman to major. At the time of his termination on October 17, 2007, Barrows was in charge of the department’s Administrative Services division.

Barrows served as interim chief of police from approximately August 2006 until January 2007 when Kevin Lindsey was hired as police chief. As chief, Lindsey attempted to implement the Sentinel program, a type of citizen-policing initiative. According to Barrows, (1) Lindsey implemented this program without seeking the input of staff responsible for its execution, (2) the program was inconsistent with the department’s current policies, (3) it wasted public funds, and (4) it potentially contravened state law. Barrows expressed his concerns to Lindsey and then Lindsey’s direct supervisor, Randy Reed, Fort Smith City Administrator. A meeting was then held between Barrows, Lindsey, Reed, and two other top administrators, Major Steve Howard and Major Ricky Brooks. During this meeting, Lindsey asked whether they had confidence in his ability to perform his job. Barrows and Reed stated they did not.

On August 23, 2007, Lindsey filed a complaint with Captain Alan Haney of the Office of Professional Standards, asserting that Barrows (1) failed to observe and adhere to department policies, (2) showed disrespect towards supervisory officers, (3) engaged in conduct unbecoming an officer, and (4) publically criticized and ridiculed the department. Haney investigated the complaint, and a review panel examined the investigative file. After giving Barrows an opportunity to explain his actions, which he refused, the review panel determined that Barrows had violated department rules and policies and should be terminated. The matter was then returned to Lindsey, who agreed that Barrows should be terminated.

After his termination, Barrows filed suit against the City of Fort Smith and Lindsey in his official capacity. He alleged that he was terminated for reporting concerns over Lindsey’s job performance in violation of the Arkansas Whistle-Blower Act, Ark. Code Ann. § 21-1-601, et seq. The trial court determined that Barrows had attempted to undermine Lindsey’s authority and to interfere with the department’s administration and, therefore, his termination was appropriate. The court then granted summary judgment on behalf of defendants.

Appeal

On appeal, the Arkansas Supreme Court stated that the Whistle-Blower Act protects a public employee who reports violations of law or waste of public funds to the appropriate authorities. The law guarantees the pubic employee freedom from discharge, threats, or any other discrimination or retaliations that relates to employment or compensation. If a public employee is punished, the employee may seek actual damages and injunctive relief through civil suit. The public employer, however, has an affirmative defense to the suit if the employee was discharged because of misconduct or poor job performance unrelated to the communication.

The court noted that there was an abundance of evidence that Barrows discussed his views of Lindsey’s competency with various people inside and outside of the department. Barrows also instructed several officers to report to him instead of Lindsey. Based on this information, the court agreed that defendants had an affirmative defense to Barrows’ claim and affirmed the trial court’s grant of summary judgment.

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I was surprised to see several links from The Daily Reviewer today. Thanks for the attention!

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Mack v. Dillon, No. 09-1295.

In early 2004, Dolandon Mack robbed a Little Rock convenience store at gunpoint. When police officers arrived, Mack fled from the store and was eventually shot by police. The shooting resulted in Mack’s leg being amputated.

Accounts differ as to what happened as Mack ran away from the officers. Mack claims that one of the officers, Tim Dillon, began shooting at him immediately after directing him to “freeze,” even though Mack was not holding a gun. Dillon asserts that Mack was holding a gun, ignored his directions to stop, and turned toward him so that Dillon believed Mack was going to shoot him. The videotape from another officer’s patrol car supports Mack’s version of events.

Mack filed a 42 U.S.C. § 1983 action against Dillon, several other police officers, and the City of Little Rock alleging a violation of his Fourth Amendment rights and a conspiracy to conceal the violation. The trial court dismissed all of Mack’s claims for various reasons. On appeal, the Eighth Circuit Court of Appeals agreed with dismissal of all of the claims except those against Dillon. The court held that, because of the differing accounts of the shooting, a material fact existed as to whether Dillon’s actions were objectively reasonable in light of the facts and circumstances confronting him. Accordingly, the court reversed dismissal of Mack’s claims against Dillon and remanded the case for further consideration.

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In 2005, Illinois adopted a law that limited jury awards for pain and suffering to $500,000 against doctors and $1 million against hospitals. Illinois medical and business industries supported the cap, claiming jury awards against medical providers had led to astronomical malpractice insurance rates, which in turn, had driven doctors out of the state. Trial lawyers and patient-rights groups argued that the real factor behind medical malpractice insurance rate hikes is the insurance industry. The Illinois Supreme Court called the law a legislative branch infringement on an issue that should be decided by the courts:

The separation of powers clause prohibits one branch of government from exercising ‘powers properly belonging to another. Thus, the inquiry under the separation of powers clause is not whether the damages cap is rationally related to a legitimate government interest but, rather, whether the legislature, through its adoption of the damages cap, is exercising powers properly belonging to the judiciary.

For the full story, click here.

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