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ATTORNEY FEES Post-decree compliance efforts are compensable Prevailing plaintiffs’ attorneys may be compensated for expenses they incurred while seeking to protect the fruits of a consent decree, the 10th U.S. Circuit Court of Appeals held on June 14. Johnson v. City of Tulsa, Okla., No. 05-5064. A class of police officers sued the city of Tulsa, Okla., alleging discriminatory employment practices. The suit resulted in a consent decree. Plaintiffs’ attorneys did work on ensuring decree compliance. Attorneys filed for attorney fees and reimbursement of expenses. An Oklahoma federal court ruled that a prevailing party in a civil rights class action is not entitled to attorney fees for post-consent decree efforts. Reversing, the 10th Circuit held that attorney fees may be awarded for efforts to preserve the fruits of a consent decree in a civil rights class action and, that when, “as in this case, the consent decree establishes mechanisms for ensuring proper treatment of all class members, attorney fees are compensable for reasonable efforts to ensure that those mechanisms are properly functioning.”   Full text of the decision CIVIL RIGHTS Methadone-clinic zoning statute is discriminatory A state statute that allows localities to bar methadone treatment centers from locating in the area violates the Americans With Disabilities Act, the 3d U.S. Circuit Court of Appeals ruled on June 15. New Directions Treatment Services v. City of Reading, No. 05-4353. A 1999 Pennsylvania zoning statute prohibits location of methadone clinics within 500 feet of an existing school, public playground, public park, residential housing area, child care facility or house of worship unless the locality affirmatively voted to allow it. When New Directions Treatment Services proposed opening a clinic in Reading, Pa., the city voted against the application. New Directions and several clinic patients filed suit in a Pennsylvania federal court charging violations of the due process and equal protection clauses of the U.S. Constitution, the Americans With Disabilities Act (ADA) and the Rehabilitation Act. The district court granted summary judgment to the city. The 3d Circuit reversed, ruling that a statute that singles out methadone clinics, and thereby methadone patients, for different zoning procedures is facially discriminatory under the ADA and the Rehabilitation Act. Because the statute’s discriminatory effect is not outweighed by any possible risk methadone patients pose to a locality, it also violates the patients’ equal protection rights. EVIDENCE Gun seized by police in impoundment is invalid A federal district court erred in refusing to suppress evidence obtained as a result of police impoundment of a vehicle, the U.S. Circuit Court of Appeals for the District of Columbia held on June 19. “>U.S. v. Proctor, No. 05-3132. Police stopped Douglas Proctor after observing him driving erratically, and arrested him for driving under the influence of alcohol. Following the arrest, police impounded his vehicle and searched it. They found a gun, and charged Proctor with being a felon unlawfully in possession of firearm. Proctor moved to suppress the evidence of the handgun. A District of Columbia federal court refused, and the jury convicted Proctor and sentenced him to 10 years in prison. Reversing, the D.C. Circuit held that the district court erred in refusing to suppress evidence of the gun because police erred in impounding the vehicle without giving Proctor the opportunity to dispose of it himself. The court said, “We believe that if a standard impoundment procedure exists, a police officer’s failure to adhere thereto is unreasonable and violates the Fourth Amendment . . . .Thus, before impounding the vehicle, an officer should provide the arrestee with the opportunity to arrange for its removal. Proctor, however, was afforded no such opportunity.” IMMIGRATION LAW Asylum can’t be denied for failure to release file An immigration judge erred in denying an application for asylum solely on the basis of the alien’s refusal to release his immigration file from a foreign government, the 9th U.S. Circuit Court of Appeals held on June 12. Singh v. Gonzales, No. 03-74390. Balwinder Singh, an Indian national, applied for asylum and withholding of removal, arguing that, if he were returned to India, he would be persecuted for his political opinions due to his membership in All India Sikh Student Federation, a group advocating the creation of a Sikh homeland. Singh had entered the United States via Canada, and U.S. authorities wanted to review his Canadian immigration file. Singh refused. Based on his refusal, an immigration judge denied Singh’s application. Granting Singh’s petition for review, the 9th Circuit held that the immigration judge erred in denying the application based solely on Singh’s refusal to release the immigration file without making a finding of credibility. The court said, “[T]he [judge] denied Singh’s application solely on the basis of the negative inference he drew from Singh’s refusal to release the Canadian records. While the IJ could properly draw a negative inference, he could not stop there. The IJ had to either use the inference to explicitly make an adverse credibility finding, or, under the law of our Circuit, treat all Singh’s testimony as true, and analyze the merits of his claim.” INTELLECTUAL PROPERTY Image retaining original context is republishable A 2001 U.S. Supreme Court ruling established a new framework for determining whether a magazine publisher has the privilege under copyright law to produce digital compilations containing exact images from past issues, the 11th U.S. Circuit Court of Appeals held June 13. Greenberg v. National Geographic Society, No. 05-16964. Freelance photographer Jerry Greenberg alleged that National Geographic infringed his copyrights. The magazine, which had published Greenberg’s pictures in four issues from 1962 to 1990, reproduced the photographs in “The Complete National Geographic” a 30-disc CD-ROM set that contained monthly issues of the magazine from its first issue in 1888 through the late 1990s. A Florida federal trial judge dismissed the suit, citing 17 U.S.C. 201(c), which gives publishers the privilege to publish a revision of originally licensed works. The 11th Circuit reversed and remanded for trial. The jury awarded Greenberg $400,000 in damages. Then, the U.S. Supreme Court held in New York Times Co. v. Tasini, 533 U.S. 483 (2001), that the republishing privilege didn’t apply when works have been removed from their original context. The 11th Circuit overruled its earlier holding, noting that Tasini created a new framework for analyzing the Section 201(c) republishing privilege. The relevant question is whether the original context of the collective work has been preserved in the revision. Clearly, National Geographic‘s compilation “preserves the original context of the magazines, because it comprises the exact images of each page of the original magazines,” the court wrote. JUDGES 9/11 attacks justified judge’s mistrial ruling A trial judge’s sua sponte declaration of a mistrial the day of the 9/11 attacks was not an abuse of discretion, a divided panel of the 6th U.S. Circuit Court of Appeals ruled on June 15. Walls v. Konteh, No. 06-3472. Lawrence Walls stood trial in an Ohio state court for aggravated robbery on Sept. 10, 2001. On Sept. 11, reasoning that the jurors would be too distracted by the plane crashes in New York, Virginia and Pennsylvania to continue their deliberations, and hearing a rumor that a bomb-laden plane was headed toward Toledo, Ohio, the judge sua sponte declared a mistrial. Though another judge in the same courthouse determined that a trial in progress should continue, the judge in Walls’ case reset the trial for Nov. 5 and Walls was convicted. After an Ohio intermediate appellate court affirmed his conviction, Walls filed for habeas corpus relief in federal court, arguing that he was placed in double jeopardy by the judge’s unwarranted declaration of a mistrial. The court granted Walls’ petition. The 6th Circuit reversed. The jury’s ability to concentrate on the case before it is a “legitimate consideration” in calculating whether “manifest necessity” justified the mistrial. Though this was a “close case,” and the mistrial may not have been “necessary,” the judge properly exercised his discretion by calling off the trial upon learning of the 9/11 attacks. REAL PROPERTY Social liability evidence needed for ‘blight’ finding Evidence of social liability, in addition to economic liability, is needed for an area to be deemed “blighted,” the Missouri Supreme Court held on June 12. Centene Plaza Redevelopment Corp. v. Mint Properties, No. SC88487. Centene Redevelopment Corp. sought to expand office and parking space in an area in Clayton, Mo., that the city was seeking to redevelop. Centene submitted a redevelopment proposal to the city, which had the area analyzed by a firm that concluded that the property Centene sought to acquire was in a “blighted area.” The city then passed an ordinance declaring the area “blighted” and approved Centene’s redevelopment plans. Mint Properties and some others owning property within the affected area fought the acquiring of their property, claiming it was not “blighted” as defined by Mo. Rev. Stat. � 353.020. Centene filed suit to condemn those properties. A Missouri trial court ruled in Centene’s favor. The Missouri Supreme Court, en banc, reversed, saying that the statute requires, among other things, “social liability” for a finding of blight. Here, however, the city had failed to provide evidence to support a finding of social liability. Evidence to support a finding of economic liability cannot also constitute evidence to support a finding of social liability under the statute. SCHOOLS AND EDUCATION Student supervision duty continues after dismissal Public schools have a duty to exercise reasonable care in ensuring student safety after school, the New Jersey Supreme Court ruled on June 14. Jerkins v. Anderson, No. A-49-06. Joseph Jerkins attended third grade at a school where all children walked to school. Despite a provision in the school’s policy on supervising students after dismissal, Joseph’s parents had not asked the school to ensure that Joseph only be released to go home with an adult. On June 15, 2001, after school was let out early, Joseph walked home by himself because no one came to pick him up. He was hit by a car and was paralyzed from the neck down. Joseph’s parents sued the school for negligently and recklessly failing to exercise a duty of reasonable supervision. The trial court granted summary judgment to the school district, finding that even if Joseph’s injuries were foreseeable, the school was not responsible for preventing harm that occurred hours after dismissal. An intermediate appellate court reversed, finding it foreseeable that a 9-year-old child, who was not met by an adult at dismissal, would remain unsupervised for hours and be hurt. The New Jersey Supreme Court affirmed and remanded for development of further facts about the school’s reasonableness in this situation. Agreeing that a child not met by an adult at dismissal could foreseeably come to harm, the court found three elements to the schools’ duty of care at dismissal: (1) the school must adopt a reasonable policy concerning dismissal and the manner in which students of different ages will be dismissed; (2) the school must provide adequate notice of that policy to all parents and guardians; and (3) the school must effectively implement that policy and adhere to parents’ reasonable requests regarding dismissal.

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