A sexual assault lawsuit against the city of Brownwood, a Brownwood Police Chief and the Texas Trails Council of the Boy Scouts of America has been settled, according to a February 10, 2010 article posted at http://www.reporternews.com/news/2010/feb/10/brownwood-settles-lawsuit .  In this regard, the Abilene Reporter-News states that the family of the sexual assault victim agreed to a settlement of $300,000.  In the lawsuit, the parents of the victim claimed that none of the entities did enough to protect their daughter, then a 15-year-old member of Police Explorers Post 1150, from a former Brownwood police sergeant who is now serving prison time for two counts of sexual assault of a child and one count of indecency with a child.  According to the article, the settlement will be paid by the insurance carrier, Liberty Mutual and Texas Municipal League.

Whether police officer sexual assault occurs in Abilene, Brownwood, Houston or elsewhere, sexual misconduct victims may contact an attorney to determine if a sexual assault lawsuit is ultimately appropriate under the particular facts and circumstances of the potential civil rights injury claim.

The Morning Journal at http://www.morningjournal.com reported in a January 16, 2010 article that a police officer sexual misconduct lawsuit against the City of Lorain has settled for $175,000 in a Cleveland federal court, according to the victim’s attorney.  As stated in the article, a U. S. District judge ordered the sexual misconduct lawsuit to move forward in December, writing that because there were more than 10 cases involving sexual misconduct among the city’s police officers, a jury could determine the city has been “indifferent” toward sexual acts among residents and police officers.  The victim’s attorney reportedly said that the judge ordered the city to pay $75,000 out of the city coffers, and $100,000 will be paid by the city’s liability insurance.  A complaint was filed against the police officer in September, 2002 after the officer allegedly kept pulling the victim over and touched her inappropriately several times.  Afet that, a lawsuit was filed in 2005 with five complaints against the officer and three against the city, stating the city failed to properly supervise the officer, among other complaints.  In 2008, the police officer was found guilty on one count of menacing by stalking by the Lorain County Court of Common Pleas.  He served 60 days in jail and was placed on probation for two years and resigned from the police department. 

See, http://www.morningjournal.com/articles/2010/01/16/news/mj2161293.prt for more detailed information.

The U.S. Labor Department has settled a lawsuit in which two Texas companies were accused of not paying $1 million in overtime to 154 workers. Those workers inspected temporary housing trailers occupied by people who lost their homes during 2005’s Hurricane Katrina.

Federal labor officials announced Wednesday that Irving, Texas-based Fluor Enterprises Inc. agreed to pay the overtime as part of a consent judgment approved in a Houston federal court. The Labor Department also obtained a default judgment against Houston-based Universal Project Management Inc., a subcontractor used by Fluor. According to court documents, Fluor admitted no wrongdoing in the case, saying it wasn’t the workers’ employer.

Universal Project Management failed to answer the claims against it in court. An attorney for Universal was not listed in court records and no public listing for the company could be found.  Associated Press February 10, 2010.

In a News Release at http://www.justice.gov/opa/pr/2010/February/10-crt-133.html , the U. S. Department of Justice (DOJ) announced that a federal grand jury in Trenton, New Jersey has charged a New Jersey man with threatening employees of five civil rights organizations that work to improve opportunities for and challenge discrimination against Latinos in the United States.  Attorneys with the DOJ claim in the February 8, 2010 news release that the gand jury’s 14-count indictment alleges that the man used the internet to repeatedly send threatening e-mail communications to employees of the LatinoJustice Puerto Rican Legal Defense and Education Fund; the Mexican American Legal Defense and Education Fund; the National Council of La Raza; the League of United Latin American Citizens; and the National Coalition of Latino Clergy and Christian Leaders.  According to the DOJ news release, the indictment further alleges that the man intended to place the victims in fear of bodily injury and that he acted because the victims were aiding and encouraging persons of Latino descent to participate without discrimination in activities provided by the federal and state governments.  Moreover, the indictment charges the man with five counts of transmitting threatening communications in interstate commerce and four counts of using a computer service to place a person in reasonable fear of death or serious bodily injury, commonly known as cyberstalking.  In this regard, the DOJ stated that an indictment is merely an accusation and the defendant is presumed innocent unless proven guilty. 

The civil rights cyberstalking case is being prosecuted by trial attorneys with the DOJ Civil Rights Division and an Assistant U. S. Attorney in the District of New Jersey.

In a January 21, 2010 posting at www.justice.org , the American Association for Justice (AAJ) reports that the federal Ninth Circuit Court of Appeals has held that police use of a Taser must be justified by a “strong government interest [that] compels the employment of such force.”  The lawsuit giving rise to the decision alleges that by shooting Carl Bryan with a Taser stun gun, a police officer, Brian McPherson, used excessive force in violation of Bryan’s Fourth Amendment rights.  The Ninth Circuit agreed with Bryan.  See, Bryan v. McPherson, 2009 WL 5064477 (9th Cir. Dec. 28, 2009).  In this regard, the plaintiff’s attorney stated that “This is the first case to set some clear limits on the use of Tasers.” 

As stated in the AAJ posting, a judge writing for the three judge panel stated that Tasers and similar devices “constitute an intermediate, significant level of force” that may be used only under limited circumstances that meet the “strong government interest” standard.  To determine whether McPherson used excessive force, the court applied the Supreme Court’s test in Graham v. Connor (490 U.S. 386 (1989)) and considered the severity of the crime, whether the suspect posed an immediate threat, and whether the suspect was actively resisting or attempting to flee.  Under the facts of this case, the court concluded that “the totality of the circumstances here did not justify the deployment of the Taser X26.” 

For his own part, McPherson relied upon an Eleventh Circuit decision holding that the police use of a Taser did not constitute excessive force.  See, Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004).  But the Ninth Circuit said the Bryan case was clearly distinguishable from Draper, because the alleged victim being arrested in Draper  heard the police officer’s commands, refused to comply, and argued with the officer. 

According to a spokesperson for Amnesty International quoted in the posting, the decision should cause law enforcement agencies and individual officers to think more carefully about when and how to use these types of weapons.

United States Department of Justice (DOJ) lawyers announced in a February 4, 2010 Press Release at http://www.justice.gov/opa/pr/2010/February/10-crt-126.html that a settlement has been reached in the DOJ’s lawsuit against MasTec Advanced Technologies on behalf of a U. S. Army Reserve member.  According to the DOJ Press Release, DOJ lawyers alleged that the company willfully violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).  More specifically, the DOJ USERRA complaint charged that the plaintiff was called to active duty in the U. S. Army and notified his company supervisor of his upcoming military service.  As stated in the Press Release, his supervisor had previously informed him that the site manager position at the office would be vacant soon and offered him the position when it became available.  This offer was accepted but the position went to another person while the employee was engaged in military service.  The settlement in this USERRA lawsuit calls for the company to pay $5,760 in baclpay and interest.

United States Department of Justice (DOJ) lawyers announced in a January 22, 2010 Press Release at http://www.justice.gov that a Louisiana man was convicted by a Shreveport, Louisiana jury in connection with a civil rights conspiracy, use of fire in commission of a federal felony, and obstruction of justice related to a cross burning near the home of an interracial couple in Athens, Louisiana.  According to the DOJ Press Release, trial evidence revealed that the man agreed with two cousins to build, erect, and burn a cross near the homes of a cousin and her African American boyfriend (now husband) and other relatives who approved of their interracial relationship.  As further stated in the Press Release, the cross was set on fire to intimidate the victims.  An Assistant Attorney General with the DOJ’s Civil Rights Division was quoted as saying: “The defendant and co-conspirators, driven by hatred, threatened a family with violence simply because they associated with persons of another race,” adding that “Incidents of this kind have no place in this country, but they are regrettably all too common.”

In an employment law news release posted by www.justice.org on January 7, 2010, the American Association for Justice (AAJ) announced that a jury has awarded lost wages, emotional distress and punitive damages against a company that demanded the resignation of a worker who served jury duty.  According to the AAJ, when a security guard told her boss that she had been called for jury duty, her boss allegedly discouraged her from serving, saying she should stay at work.  After the security guard complied with the summons and served three days on a criminal trial, she presented a letter from the judge verifying her service and requesting payment for work time missed.  As stated in the AAJ news release, the company refused to pay her and demoted and transferred her.  About a month later, the security guard’s boss allegedly gave her a letter accusing her of fraud and demanding that she provide additional documentation of her jury service or a letter of resignation.  The letter stated as well that is she did not provide one of those, she would be referred to the state attorney and the division of licensing, according to the AAJ.  The security guard resigned and filed a lawsuit under a state statute that prohibited employers from threatening or dismissing employees for the length or nature of their jury service.

A Houston newspaper reported on January 17, 2010 that shootings by police officers in agencies across Harris County reached the highest level in nearly two decades in 2009, with 60 civilians being shot - 27 of whom were killed.  See, Olsen, Lise and James Pinkerton, “The Rise of Deadly Force,” Houston Chronicle, 1/17/10, p. 1.  As reported in the article, that amount is nearly twice as many shootings as the area’s annual average, based on the last five years of reports.  While most of the people shot were armed, the article states that, in December, a man was shot and wounded by a rookie Houston Police Department officer who believed the man was wielding a gun.  However, the man held a hairbrush.  In addition, the article states that in several other shootings, people initiated confrontations with police and drew weapons after being surrounded by officers or SWAT teams in what family members described as attempts to “commit suicide by cop.” 

As further reported in the article, Houston Police Department Interim Police Chief Charles McClelland stated that the Houston Police Department (HPD) responds to over a million calls a year and has 3,600 men and women in uniform on patrol.  He added that officers do not want to have to shoot.

According to the news report, HPD officers participated in 29 shootings in 2009, involving 15 deaths and 13 injuries.  In this regard, the article stated that the total for HPD is about the same as reported by the far larger Los Angeles Police Department, which had 27 shootings, resulting in 12 deaths. 

Questions over 2009’s record shootings mirror issues raised in the past by lawyers and civil rights activists.  According to one Houston lawyer, Houston leaders have failed to keep promises to prevent deaths of unarmed citizens.  The founder of Civilians Down, a citizens rights group focused on shootings of the mentally ill, added that shootings of the mentally ill are troubling and if there is no change then unnecessary and unjustified shootings will continue to occur.

Whether excessive use of force and use of unjustified deadly force by police officers occurs in Houston or Harris County, Texas, victims of police mistreatment may contact local law enforcement or the United States Department of Justice to determine if further action is warranted.  In addition, excessive and deadly force victims may contact a lawyer to determine if a civil rights lawsuit is ultimately appropriate under the facts and circumstances of the potential civil rights violation claim.

The National Employment Lawyers Association (NELA) announced on January 14, 2010 that Congress, at the end of its last session, enacted the “Jamie Leigh Jones Amendment” (also known as the Franken Amendment in section 8116 of the Defense Appropriations Act for 2010).  Signed by President Obama on December 19, 2009, the Franken Amendment is the first federal legislation that prevents employers from forcing pre-dispute, binding arbitration on their employees.  The Franken Amendment prohibits the award of Department of Defense contracts of over one million dollars to any company that forces its employees or independent contractors to submit to pre-dispute binding arbitration of Title VII and sexual assault related tort claims (with certain exemptions).

According to NELA, the Franken Amendment will protect hundreds of thousands of employees around the country from being forced to arbitrate their Title VII claims; it is estimated that 80% of defense contractors exceed the Amendment’s one million dollar threshold.  NELA reports that a list of the 2009 top 100 defense contractors can be found at http://washingtontechnology.com/toplists/top-100-lists/2009.aspx .  Also, more information can be found at http://www.governmentcontractorswon.com/default.asp .   Further in this regard, NELA states that the Amendment provides a major new legal tool for employees to use to strike down forced arbitration clauses imposed by their employers who are federal defense contractors or subcontractors, and sets an important prcedent for efforts to eliminate forced arbitration in other employment and consumer contexts.

The list of covered sexual assault-related tort claims is reportedly quite extensive, encompassing “any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision or retention.” 

Importantly, employees protected by the Franken Amendment can invoke it to defeat motions to compel forced arbitration.  Further information about NELA’s comments on the Amendment may be located at www.nela.org .  For its own part, NELA advances employee rights and serves lawyers who advocate for equality and justice in the American workplace.