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CIVIL RIGHTS Race-based transfers not proper remedy for bias A city cannot use a race-based transfer and assignment policy for its firefighting units when past intentional discrimination did not cause racial imbalance within a unit, the 3d U.S. Circuit Court of Appeals ruled on Sept. 18. Lomack v. City of Newark, No. 05-4126. A federal district court in 1977 placed the city of Newark, N.J., under a consent degree to hire more minority firefighters. More minorities were hired and promoted, but a 1995 report revealed that there were many all-white, all-black and all-Hispanic firefighting units. The then mayor of Newark, Sharpe James, announced in July 2002 that to improve morale, he would eliminate all single-race fire companies in the city. Thirty-four firefighters who were involuntarily transferred from single-race units to accomplish James’ goals sued the city under 42 U.S.C. 1983. The district court dismissed their case. The 3d Circuit reversed, stressing that its opinion does not address remedying intentional discrimination or improving the fire department’s ability to fight fires, nor does it touch on whether diverse workplaces are good for employees or society. Instead, the court ruled that while the city has an interest in correcting past discrimination, there was no evidence that the units became single-raced because of anything the city did. “Remedial justification for the use of racial classifications is wholly inapplicable here,” the court wrote. The city did not prove that the benefits of diversity in this case served as a compelling government interest justifying the policy, and the consent decree’s prohibition of unlawfully discriminatory assignments cannot be read to impose a complete-diversity requirement for all fire department units.   Full text of the decision CRIMINAL PRACTICE Disciplinary purpose in punishment read broadly In an apparent case of first impression in the District of Columbia, a trial court erred in rejecting the defense of parental discipline to an assault and cruelty to children charge because the court interpreted the defense too narrowly in determining that the parent did not have a disciplinary purpose in striking her child, the District of Columbia Court of Appeals held on Sept. 21. Florence v. U.S., No. 05-CM-159. Selenna Florence’s 11-year-old daughter weighed 269 pounds and was being treated for obesity when she disobeyed her mother and took food items her doctor had recommended she not eat. After Florence recovered the food and hid it in her bedroom, her daughter ransacked the room. An altercation between mother and daughter ensued, and Florence struck her 11-year-old daughter with a curling iron. Ruling that Florence was attempting to inflict pain rather than acting in a genuine attempt to correct the child, a trial court convicted her of assault and attempted second-degree cruelty to children, rejecting Florence’s parental discipline defense. Florence appealed. Reversing Florence’s conviction, the District of Columbia Court of Appeal, D.C.’s high court, held that the trial court erred in rejecting Florence’s defense, ruling that the trial court interpreted the parental disciple defense too narrowly. “Although a parent’s uncontrolled anger can be evidence that physical force is not being applied for a disciplinary purpose or to show that the force used was unreasonable, appellant could simultaneously be angry and be acting lawfully, with the intent to discipline. What the law requires of parents is the use of reasonable force for a disciplinary purpose, not saintliness,” the court said. ‘Sloppy’ bank robbery conviction is upheld The government’s “sloppiness” in using photocopied Federal Deposit Insurance Corporation certificates and teller testimony to prove the FDIC-insured status of robbed banks is “not a ground for reversal,” of bank robbery convictions, the 7th U.S. Circuit Court of Appeals held on Sept. 20. USA v. Hampton. No. 05-3591. A jury convicted Nikita Hampton of 10 robberies and one attempted robbery of federally insured banks, and related crimes. An Illinois federal district court entered judgment and a prison sentence, but Hampton claims that the government failed to prove the banks were federally insured, which is an element of the crime. The government had produced photocopies of what purport to be the certificates of FDIC insurance issued to the banks, but no originals. For most banks at issue, a teller testified that an identical photocopy hanging on the wall of his bank was a true copy of the bank’s certificate; for other banks, different bank employees gave such testimony. The 7th Circuit affirmed, but called the government “sloppy.” It said that the copies in evidence pre-dated the robberies, raising the possibility of a subsequent lapse. The employees testified that the banks were insured at trial time, but the insurance could have lapsed and been reinstated after the robberies. The circuit court said, however, that the likelihood of this is “too slight to undermine the testimony seriously.” The court said that testimony as to a bank’s insured status is usually given “by a bank officer . . . rather than a lowly teller,” and cautioned that “the government would be wise in future cases to prove insured status more directly and conclusively . . . either by getting an affidavit from the FDIC confirming the insured status of the robbed bank . . . or by offering testimony by the bank employee who is the actual custodian of the bank’s FDIC certificate.” No counseling for old sex-related convictions A condition of supervised release that a defendant get sex-offender counseling cannot be based on sex-related convictions more than 17 years old, the 6th U.S. Circuit Court of Appeals ruled on Sept. 18 in a matter of first impression. U.S. v. Carter, No. 05-6129. Larry Carter was sentenced to 30 months in prison, plus three years of supervised release, for being a convicted felon in possession of a firearm. A Tennessee federal district court ordered Carter to participate in mental-health counseling as a special condition of his supervised release. In 2005, when he failed to comply with the condition, Carter was sentenced to 12 more months in prison, plus two years of supervised release. This time, on the government’s petition, the district court ordered Carter to enter a “sexual offender treatment program and evaluation” as a special condition of his supervised release. The court also imposed mandatory polygraph testing. The 6th Circuit reversed, agreeing with Carter that being a felon in possession of a firearm is not a sexual crime, and so the special condition is not reasonably related to his offense. In 1988, Carter was convicted of rape during a burglary and intent to commit rape during an assault, but too much time has elapsed between those convictions and his 2005 conviction to justify the special condition. The court remanded for a determination if Carter’s 2004 conviction for stalking was sexual in nature, which could serve as the basis for the special condition. EVIDENCE Admission of lay opinion in pot trial not improper A federal district court did not violate the Federal Rules of Evidence by admitting lay opinion testimony to identify marijuana in the trial of a mother accused of supplying the drug to her 18-month-old daughter, the 9th U.S. Circuit Court of Appeals held on Sept. 22. U.S. v. Durham, No. 05-30403. Brandi Nichols was visiting her friend, Jessica Durham, when Nichols claimed that Durham gave marijuana to her 18-month-old daughter by giving the child a water pipe from which the child inhaled the drug. At Durham’s trial for knowingly and unlawfully distributing marijuana to a person under the age of 21, she sought to exclude Nichols’ testimony. Nichols, a longtime marijuana smoker, testified that the alleged substance in the water pipe was marijuana. Durham argued that Nichols’ lay opinion testimony that the substance was marijuana was inadmissible under Fed. R. Evid. 701. A Montana federal district court ruled that though Nichols was not a scientific expert on drug identification, her testimony was admissible. Durham appealed. Although it reversed the district court on Durham’s sentence, the 9th Circuit held that Nichols’ testimony was admissible. Though the court acknowledged that such lay testimony would often be excluded under Rule 701, the court relied on the advisory committee notes to the 2000 amendments to the rule, and held that lay opinion was admissible for drug identification where the lay witnesses’ familiarity with the drug was established. “In the instant case, there was no question as to Ms. Nichols’s familiarity with marijuana-in both its fresh and burnt forms. Ms. Nichols’s testimony was thus based upon her personal knowledge, and her first-hand, multi-sensory interaction with the substance in question.” FAMILY LAW Child support award is barred after 10 years An award of premarital child support was barred by the 10-year statute of limitations applicable to judgments, the Montana Supreme Court ruled on Sept. 19. Momsen v. Momsen, No. 05-334. Before they were married, Wayne and Jean Momsen had two children, one on Dec. 2, 1981, and another on Dec. 4, 1985. They began living together on Dec. 7, 1985, and got married on Sept. 27, 1986. After Wayne filed for divorce on June 25, 2003, Jean requested child support from the date of the birth of their first child until the date they began living together. A Montana state court awarded her $12,960 in premarital child support and ultimately granted the divorce. Mont. Code Ann. � 27-2-201(1) provides for a 10-year statute of limitations for actions upon court judgments or decrees. Reversing the lower court, the state Supreme Court found that no child support order existed imposing support obligations on Wayne prior to the marriage. Since a child support claim against a person with a legally imposed obligation may be barred by the statute of limitations, the statute may also bar such a claim against a person without one. FIRST AMENDMENT City commercial speech restrictions upheld An ordinance restricting person-to-person solicitation is not unconstitutional, as it can be read to limit only commercial speech, the Alaska Supreme Court held on Sept. 22. City of Skagway v. Robertson, No. S-11702/11741. The City of Skagway, Alaska, adopted an ordinance directed to the regulation of the “time, place and manner” of certain limited forms of commercial speech, in order to curb the proliferation of aggressive sales tactics aimed at pedestrians and tourists and to preserve the historic character of the town. Specifically, the ordinance confines person-to-person solicitation within the historic district to enclosed structures or to areas containing at least 200 square feet of vending space. Two tour company operators challenged the ordinance as unconstitutional. An Alaska superior court held that the sweep of the ordinance is so broad that it impermissibly affects protected speech as well as commercial speech and is thus unconstitutional. The Alaska Supreme Court disagreed and reversed. The ordinance on its face states that it is “directed solely at the regulation of . . . certain limited forms of commercial speech,” which is less protected than other constitutionally safeguarded forms of expression, being “more hardy, less likely to be chilled, and not in need of surrogate litigators.” INSURANCE Rights of assignee to policy proceeds clarified In an issue of first impression, the Oklahoma Supreme Court on Sept. 19 answered the question of whether the principle articulated in Allkire v. King, that the assignment of a life insurance policy conveys to the assignee a right to policy proceeds although the insured’s estate is the named beneficiary, applies to contracts generally. Randall v. Travelers Casualty & Surety Co., No. 103417. After being injured in an accident, Richard Randall entered into a settlement agreement with Travelers Casualty & Surety Co. (Travelers) in which he would receive $1,250 a month for 300 months, with any remaining payments upon his death to go to his estate. Travelers bought an annuity from a life insurance company to fund the monthly payments. Two days before his death, Randall assigned all his rights under the settlement agreement to his wife. Upon notice that Travelers and the life insurance company took the position that payments should only be made to Randall’s estate, his wife filed a suit for breach of contract and bad faith, which was removed to federal court by Travelers. The Oklahoma federal court granted Traveler’s motion for summary judgment. Upon appeal, the 10th Circuit certified the unsettled issue of law to the state Supreme Court. In answering in the affirmative the certified question of whether proceeds for insurance policies other than life insurance are assignable, the Oklahoma Supreme Court followed the principle that the estate of a living person has no vested right of inheritance and also followed case law that assignments of life insurance policies are ordinary contracts to be interpreted under general contract principles. MEDICAL CARE State must pay for care; not required to provide it Medicaid does not require states to provide medical services to disabled persons who need them, promptly and equally or otherwise, but rather requires payment of medical services bills for those disabled persons who do receive medical services, the 10th Circuit U.S. Court of Appeals held on Sept. 21. Mandy R. v. Owens, No. 05-1148. Colorado has a waiting list of hundreds of developmentally disabled persons who need but do not receive Medicaid-funded services. Six such persons and an association of providers sued the governor and other officials under 42 U.S.C. 1983, claiming that the state of Colorado has failed to comply with three requirements of Medicaid relating to comprehensive residential services, namely reasonable promptness, comparability and sufficient payments. Any state choosing to participate in Medicaid must submit a plan for providing “medical assistance” that complies with these conditions. After a bench trial, a Colorado federal district court entered judgment for the defendants. The 10th Circuit affirmed. It said that “reasonable promptness” relates to the speed at which payments are provided to all eligible individuals, and “comparability” means the assistance any patient receives must not be inferior to that made available to any other such individual. The 10th Circuit said that the natural reading of the statute is that the state must pay for medical services, but it need not “provide” the services. PERSONAL INJURY Golf course not liable for boy’s drowning in pond A golf course is not liable to the family of an 8-year-old boy who fell through the ice on a golf course irrigation pond and drowned, because the frozen pond is a danger that children should reasonably understand, a divided Delaware Supreme Court ruled on Sept. 19. Butler v. The Newark Country Club, No. 420, 2005. Ignoring “no trespassing” and “no skating” signs, three children climbed a fence to play on the Newark Country Club’s frozen irrigation pond. Though certain areas of the pond were frozen hard, the ice in an area where nearby pipes brought in a continuous flow of water from a creek was thin. Jeremiah Butler, ignoring his mother’s warnings, fell through the ice near this area and drowned. His mother sued the club for negligence, acknowledging that Jeremiah was trespassing, but claiming the pond was an “attractive nuisance.” The trial court ruled for the club, finding that the continuous flow of water from the pipe, which caused the pond to freeze unevenly, was no different from any other body of water. The Supreme Court affirmed, saying that an ice-covered pond is an ordinary danger that children can be expected to discover and appreciate.

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