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2ND CIRCUIT UPHOLDS PERP WALK VIDEO NEW YORK — The release of a videotape by Westchester County, N.Y., showing corrections officers arrested for abusing disability benefits, had a legitimate governmental purpose and does not violate the Fourth Amendment’s prohibition of unreasonable searches and seizures, a federal appeals court has ruled. Clarifying the standard for the controversial practice of “perp” walking, or parading arrestees before media photographers, the Second Circuit U.S. Court of Appeals said privacy interests of a defendant were outweighed by the government’s interests in informing the public about efforts to stop disability benefit abuse and in prompting people to come forward with information to aid an investigation. In Freeman v. The County of Westchester, 01-7457, Joseph Freeman and several other corrections officers were told to report to Department of Corrections headquarters on July 12, 1999, where they were arrested, handcuffed and escorted through the parking lot in a procession that was videotaped by a county employee. Later that day, county officials released a copy of the videotape to the media. Southern District Judge Colleen McMahon rejected Freeman’s Fourth Amendment claim. Freeman challenged the release of the tape as unconstitutional in light of the Second Circuit’s first decision on perp walks, Lauro v. Charles, 219 F. 3d 202 (2000). In a decision authored by Judge Fred Parker before his death in August, the Second Circuit said, “Perp walks serve the more serious purpose of educating the public about law enforcement efforts.” — The New York Law Journal CANDIDATES EMERGE FOR 3RD CIRCUIT SEAT PHILADELPHIA — Two leading candidates have emerged to fill the seat on the Third Circuit U.S. Court of Appeals that opened when Judge Edward Becker took senior status, and sources say a third candidate, U.S. District Judge Franklin Van Antwerpen — who was reportedly told by the White House last month that he was “too old” to be elevated — may yet be in the running again. In recent interviews, sources said that after 61-year-old Van Antwerpen was told that he was no longer being considered for the appellate court, two Philadelphia attorneys emerged as the leading contenders — Gene Pratter of Duane Morris and Alfred Putnam of Drinker Biddle & Reath. But among sources who are familiar with the process, there was little agreement about which of the three candidates is the White House’s most likely pick. All three candidates declined to be interviewed for this story. Becker’s seat opened in May when he turned 70 and was forced to end his five-year term as chief judge and opted to take senior status. The usual term for a chief judge is seven years, but the federal courts prohibit judges from beginning a term as chief any later than age 65 and require chiefs to step down at age 70. Even before Becker’s seat officially opened, the White House made a public announcement of its “intent to nominate” U.S. District Judge Jay Waldman to fill the post. But the formal nomination of Waldman never occurred because he died in June. — The Legal Intelligencer ACTIVIST CHALLENGES TOBACCO APPEAL JUDGE MIAMI — An anti-smoking activist has filed suit to disqualify the Florida appeals judge who wrote the May decision throwing out a $145 billion judgment against the tobacco industry. In a suit filed Tuesday in Miami-Dade Circuit Court, Rita Zemlock, president of Group Against Smokers’ Pollution, alleges that Gersten hasn’t lived in Miami Beach in years. He moved to Gainesville with his family nearly a decade ago, making him ineligible to serve on the Third District Court of Appeal, 400 miles away, the plaintiff claims. The state’s Third District comprises Miami-Dade and Monroe counties. Neither Gersten nor Chief Judge Alan Schwartz could be reached for comment. The suit was filed by Aventura lawyer Albert Zemlock, the plaintiff’s husband. In an interview, he said he and his wife were “enraged” that Gersten participated in the unanimous ruling throwing out the huge punitive damages verdict against the cigarette companies. He said they hope their suit will get Gersten booted from a possible rehearing in that case. “I want to have things done legally right,” Zemlock said. “Secondly, I did not like the opinion. I would like to see it reversed and set aside. I would not like to see David in court on the en banc hearing.” — Miami Daily Business Review

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