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ADMIRALTY Coast Guard can be sued if it hindered ship salvage the coast guard was within its discretion in ordering evacuation of a sinking ship, but a fact-finder must decide whether the agency worsened the ship’s position by thwarting efforts to save it, the 1st U.S. Circuit Court of Appeals held on Nov. 26. Thames Shipyard & Repair Co. v. U.S., nos. 02-1619; 02-1620. A 144-foot fishing boat developed a hole through which significant water entered, prompting the captain to ask the U.S. Coast Guard for help with pumping. Despite the Coast Guard’s efforts, the boat began to list. The Coast Guard ordered the captain and crew to abandon ship. Subsequently, the vessel capsized and sank. At least one commercial salvor was nearby and ready to assist, but was told by the Coast Guard to stay off the radio. The ship, its insurers and the shipyard sued, alleging that the ship sank due to the Coast Guard’s negligence. They claimed that the ship could have been salvaged if the captain and crew had been allowed to stay on board long enough for help to arrive. A Massachusetts federal court granted summary judgment to the Coast Guard. The 1st Circuit reversed and remanded. The court said that the U.S. is immune from suit unless it consents to be sued. In this case, the waiver provisions of the Suits in Admiralty and the Public Vessels acts applied. The acts’ “discretionary function” includes a two-pronged test, which the U.S. passed with respect to the evacuation order. However, there was a factual issue as to whether the Coast Guard’s interference with the commercial salvor’s communications prevented the ship’s salvage. Applying the Good Samaritan Rule of negligence, the court held that a fact-finder could find that the salvor was ready to give useful aid and that the Coast Guard had acted negligently in hindering this. Full text of the decision CONSTITUTIONAL LAW No right to competency in sexual predator trial an individual does not have a fundamental constitutional right to be competent during proceedings to determine whether he is a sexually violent predator, the Iowa Supreme Court determined on Nov. 29. In re Detention of Cubbage, No. 71/02-0850. Following a psychologist’s assessment that a man who had been convicted of four sexually violent offenses in the past was likely to commit future sexually violent acts, the state filed a petition to have him confined for treatment. The defendant filed an application seeking a psychiatric evaluation of his competency to stand trial. The lower court denied the application and later determined that he should be confined for treatment. Cubbage appealed, claiming violation of his right to a pretrial psychiatric evaluation. The Supreme Court affirmed. Iowa’s Sexually Violent Predator Act involves the civil commitment of an individual alleged to be a sexually violent predator. Though the criminal trial of an incompetent defendant violates due process, the court stated, this act involves potential civil commitment. Since there is no fundamental right to competency in the civil commitment context, the Supreme Court analyzed the statute under rational-basis review, concluding that “there is a reasonable fit . . . between the State’s purpose of protecting society from persons who have been determined to be likely to reoffend if not placed in a secure facility and their placement in such a facility.” Full text of the decision Alcohol can be banned if dancers are fully nude two town ordinances that prohibited bar patrons’ physical contact with nude dancers and alcohol consumption in nude bars do not violate the First Amendment, the 7th U.S. Circuit Court of Appeals found on Nov. 25 in an issue of first impression. G.M. Enterprises Inc. v. Town of St. Joseph, Wis., No. 03-1428. The Wisconsin town of St. Joseph enacted two ordinances prohibiting sexually oriented businesses from allowing any physical contact with nude dancers and banning the sale of alcohol on premises where there is fully nude dancing. The town stated that it was concerned over the deleterious effect of sexually oriented businesses on their neighborhoods, and that it sought not to suppress speech but to address its negative secondary effects. G.M. Enterprises Inc., the operator of a nude bar, filed a complaint in a Wisconsin federal court pursuant to 42 U.S.C. 1983, seeking declaratory and injunctive relief. G.M. claimed that the ordinances were unconstitutional because there was little evidence to show that they would combat the alleged secondary effects; because they prohibited more expression than was necessary to combat the secondary effects; and because they conditioned the grant of a liquor license, a government benefit, on the surrender of the constitutional right to freedom of expression. A Wisconsin federal district court granted the town summary judgment. G.M. appealed. The 7th Circuit affirmed. The court stated that the First Amendment does not mandate a right to serve alcohol where nude dancing takes place. Moreover, physical contact with nude dancers is beyond the scope of the protected expressive activity. Neither of the ordinances prohibits nude dancing, the court stated. Rather, they seek to minimize those factors that are likely to give rise to nude dancing’s adverse secondary effects. “Requiring that adult entertainment establishments maintain a minimal physical buffer between patrons and dancers does not reduce the availability of nude dance entertainment.” Full text of the decision Time bar on Pacific war camp survivors’ claims survivors of the Pacific theater during World War II cannot pursue their takings claim against the U.S. government, based on the 1951 Treaty of Peace with Japan, because their claim is barred by the statute of limitations, the U.S. Court of Appeals for the Federal Circuit ruled on Nov. 26. Hair v. United States, No. 02-5115. The peace treaty settled all issues between Japan and Allied nations, and waived all claims the Allied nations’ citizens may have against Japan. Compensation for nationals injured in the war was to be handled by individual nations. In 2001, two people who claimed that they were interned by the Japanese in the Philippines and mistreated-one as an infant, another as a member of the Army-filed a takings claim against the United States on behalf of 400,000 to 600,000 similarly situated plaintiffs, asking for $1 trillion in compensation. The district court granted the government’s motion to dismiss, holding that the six-year statute of limitations of 28 U.S.C. 2501 applies, which says “Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.” The Federal Circuit affirmed. The court rejected the plaintiffs’ argument that their claim was constitutionally based. Noting that a constitutional right to just compensation is not an absolute, the court concluded that a takings claim under the Fifth Amendment may be subject to reasonable time bars designed to protect other important societal values. Full text of the decision Ban on weapons mention in dress code is too wide a minor student’s challenge to the constitutionality of a school dress code that banned clothing depicting weapons had a strong likelihood of success, therefore a district court erred in denying the student’s motion for a preliminary injunction enjoining enforcement of the code, the 4th U.S. Circuit Court of Appeals held on Dec. 1. Newsom v. Albemarle County Sch. Bd., No. 03-1125. After an assistant principal asked Alan Newsom, a student at Virginia’s Jack Jouett Middle School, to remove a National Rifle Association T-shirt depicting firearms, Newsom sued the Albemarle County School Board, arguing that the school’s dress code, which banned “messages on clothing, jewelry, and personal belongings that relate to . . . weapons,” was unconstitutionally overbroad. A district court denied Newsom’s motion for a preliminary injunction to enjoin enforcement of the code, holding that Newsom had failed to demonstrate likelihood of success on the merits of his claims. Newsom appealed. In reversing, the 4th Circuit held that Newsom had demonstrated a strong likelihood of success despite the limited First Amendment protections enjoyed by minor students. Noting that the code would ban clothing with the seal of the commonwealth of Virginia and the University of Virginia’s athletic symbol, the court said, “After examining the record . . . [the] Jouett Dress Code disfavors weapons, displayed in any manner and in any context, and potentially any messages about weapons. It excludes a broad range and scope of symbols, images, and political messages that are entirely legitimate and even laudatory.” Full text of the decision EMPLOYMENT Taking of hoe is theft for workers’ comp purposes public safety officers’ use of a backhoe to remove trees in the aftermath of Hurricane Andrew constituted theft for workers’ compensation purposes in a wrongful death action stemming from the death of one of the officers, Florida’s 3d District Court of Appeal held on Nov. 26. Byers v. Ritz, No. 3D01-3585. When Hurricane Andrew hit South Florida in 1992, John Byers Jr. was a public safety officer in Ocean Reef, Fla. The day after the hurricane hit, Byers was killed as officers attempted to remove a fallen tree from a road with a backhoe. Officers spotted the backhoe at a gas station and decided to use it. Since there was no telephone service after the storm, they couldn’t make contact with the owner. Byers’ estate brought suit against his supervisors, David Ritz and Paul Barcinas, for wrongful death, arguing that the two were not immune from suit under Florida’s workers’ compensation law because of the law’s criminal acts exception. The estate argued that the seizure of the backhoe constituted theft. Ritz and Barcinas countered that an emergency made the seizure necessary. A jury found that there was no theft, and the estate appealed. In reversing and remanding, the appellate court held that the trial court had erred in refusing to instruct the jury on the definition of “obtains or uses” in Florida’s standard jury instruction on theft. The court held that the necessity defense would not be available in the retrial, stating: “The evidence at trial established that the backhoe was merely taken to expedite the clearing of trees and debris following Hurricane Andrew . . . .[T]he evidence failed to establish that the theft of the backhoe was ‘necessary to avoid an imminent threat of death or serious bodily injury.’ “ Full text of the decision IMMIGRATION LAW Nazi at 17, man shouldn’t be stripped of citizenship a 78-year-old man who joined the Nazi party as a 17-year-old should not be stripped of his U.S. citizenship because he was not a voluntary member of the party, the 3d U.S. Circuit Court of Appeals ruled on Nov. 19. Breyer v. Ashcroft, No. 02-4226. Johann Breyer was born in what was Czechoslovakia to a mother who was a U.S. citizen of German heritage. In 1942, Breyer received a notification from the Nazi party instructing him to report for military service. Breyer showed up, passed the physical examination, was called up and assigned to the concentration camp at Buchenwald for training. Afterward, he fought for Germany. Breyer immigrated to the United States in 1952 and was naturalized in 1957. The Justice Department began proceedings to “denaturalize” Breyer in 1992, which was denied. Because of his mother, he was eventually granted U.S. citizenship. The Immigration and Naturalization Service moved to strip him of his citizenship. The district court denied the petition. The 3d Circuit affirmed, agreeing that Breyer did not voluntarily take any actions that could be grounds for withdrawal of citizenship. The court noted that Breyer did not know he was a U.S. citizen when he joined the Nazi party, so his actions were not tantamount to renunciation of citizenship. Given the circumstances of his military service, the court concluded that, on balance, Breyer was not a voluntary member of the party. Full text of the decision TORTS Employment scope holds if routine change is small it is for a jury to apply the “slight deviation” test to decide whether a driver acted within the scope of his employment when turning into a service station while delivering football tickets, the 10th U.S. Circuit Court of Appeals held on Nov. 25. O’Shea v. Welch, No. 02-3343. Anthony Welch was a store manager for Osco Drug who frequently made trips for Osco in his personal vehicle. While driving from his store to the Osco district office to deliver football tickets to Osco managers, he attempted to turn into a service station. He struck John O’Shea’s vehicle, causing injuries. O’Shea sought to hold Osco liable under a theory of respondeat superior, but a Kansas federal court granted Osco summary judgment. At a bench trial, the court entered judgment against Welch. The 10th Circuit reversed, holding that it was unclear if Welch was acting within the scope of his employment when he turned into the service station. The 10th Circuit cited the Kansas standard that employees act within its scope when they do anything that is “reasonably incidental” to employment, meaning the conduct “should have been fairly foreseen from the nature of the [employment] and the duties relating to it.” The 10th Circuit noted that in workers’ compensation cases, Kansas courts rule that a “slight deviation” from the employer’s business is sufficiently related to the employment to fall within its scope. Full text of the decision

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