Legal Report April 2006
U.S. JUDICIAL DECISIONS
FALSE ARREST. A Mississippi appeals court has ruled that a casino security officer used proper investigative techniques when arresting a casino employee for theft. Because of this fact, the employee’s claim of false arrest failed.
Lorann Coleman had been employed at the Delta Blues Café at the Grand Casino in Tunica, Mississippi, since it opened in 1996. Over the years, she had been promoted from cook to supervisor.
In early 1999, the café’s manager noticed discrepancies in the cash register totals run at the end of each day. The manager complained to her supervisor, who in turn notified security.
Chris Smith, a security officer for the casino, began an investigation. Smith installed CCTV to conduct surveillance on the café employees. The tapes showed one employee, Sandra Harris, taking money from customers and putting the cash on top of the cash register. Harris would then walk away, returning later to take the cash and put it in her pocket.
When questioned, Harris admitted to the theft. She also told investigators that several other employees, including Coleman, were involved in the embezzlement. Other employees also confessed to stealing. However, these employees said that Coleman did not steal herself, but demanded that she get a cut of the proceeds. In return, Coleman promised not to report the thieving workers.
The employees reported that they put Coleman’s cut in a knife box and that they never spoke directly to her about the thefts. On the surveillance tape, Coleman often lingered around the knife box, opened it, but did not retrieve a knife.
Casino security officers questioned Coleman about the scheme. Coleman denied any involvement. None of the surveillance tapes showed Coleman taking money; however, based on the information provided by the café employees, she was arrested for embezzlement.
Several employees were arrested in connection with the thefts, but Coleman was the only one prosecuted. The other participants agreed to pay back the money in exchange for the casino’s pledge to drop all charges.
After her arrest, Coleman was subsequently held for more than 24 hours without bond. She was released when a judge determined that the casino had presented insufficient evidence to hold her for trial.
Coleman sued Smith and the casino for false arrest and malicious prosecution. Coleman claimed that she was arrested without probable cause. Coleman also claimed that Smith decided to prosecute her to try to obtain the money that she had allegedly stolen. According to the court, if Smith had indeed used the threat of prosecution to obtain funds from Coleman, the act could be seen as an abuse of power under Mississippi law.
The casino requested summary judgment—a hearing based on the facts of a case without a trial. The court granted the summary judgment, ruling that there was ample evidence to suggest that Coleman had participated in the embezzlement and that there was no evidence that Smith or the casino had acted with malice. Coleman appealed the decision.
The Mississippi Court of Appeals upheld the summary judgment, finding that the casino acted on solid investigative evidence when it arrested Coleman. The claim that Smith abused his power by threatening Coleman with prosecution unless she paid back stolen funds was contradicted by Coleman’s written affidavit, making her testimony unsound. (Coleman v. Smith, Mississippi Court of Appeals, No. 2004-CA 01918-COA, 2005)
THIRD PARTY LIABILITY. The California Supreme Court has ruled that a landowner may be responsible for the injuries to a contractor’s employee under certain circumstances. According to the court, the landowner need not be in control of the employee’s activities to trigger liability.
In the early 1950s, Ray Kinsman worked as a carpenter at a Unocal refinery in Wilmington, California. Kinsman was employed by an independent contractor, Burke & Reynolds, hired by Unocal to do repairs to the refinery.
Kinsman’s work exposed him to airborne asbestos, stirred up by other workers who were insulating pipes and machinery. Kinsman later developed mesothelioma, a malignant cancer of the lungs caused by exposure to asbestos. He sued product manufacturers, distributors, and Unocal.
Through years of litigation, several facts emerged. One was that Unocal knew that asbestos was harmful by the late 1930s but did not take steps to protect employees or contractors working on its property at the time. Another was that Burke & Reynolds did not provide safety equipment to its contractors, but there is no evidence that the contractor knew that asbestos was dangerous.
Kinsman sued Unocal for negligence. Unocal argued that the levels of asbestos Kinsman was exposed to did not exceed the safety limits set at the time. A jury found in favor of Kinsman and awarded him $3.7 million compensatory damages. Unocal appealed the decision.
The California Court of Appeal overturned the jury verdict, finding that Unocal could only be held liable if it had supervisory control over Kinsman’s work. Unocal did not direct Kinsman’s work in any way, determined the court, so it could not be held responsible for his injuries. Kinsman appealed.
The California Supreme Court ruled that Unocal could be held liable even if it did not supervise Kinsman’s work. According to the court, Unocal could be responsible if three conditions were met.
First, the landowner knew or reasonably should have known of a hazardous condition on its premises. Second, the contractor must not have known about the condition and must have had no way to reasonably ascertain the hazard. And third, the landowner must have failed to warn the contractor.
This three-part test addresses a previous loophole in the case law, according to the court. In the written opinion of the case, the court elaborated. “If the landowner knew or should have known of the hazard and the contractor did not know and could not have reasonably discovered it, then the landowner delegated the responsibility for employee safety to the contractor without informing the contractor of critical information that would allow the contractor to fulfill its responsibility. Under such circumstances, the landowner may be liable.” (Kinsman v. Unocal Corporation, Supreme Court of California, No. S118561, 2005)
REGULATORY ISSUES
SECURITY OFFICERS. The FBI has issued an interim final rule setting out how employers can request criminal background checks on prospective and current private security officers.
Under the rule, employers must register with their state identification bureau, through which the background checks will be routed. The employer must declare that it employs private security officers, that all fingerprints and requests for criminal history background checks are for private security officers, and that it will use the information for the sole purpose of screening private security officers.
The rule also requires that an employer obtain the written consent of the employee to be screened. The consent form must clearly state the employee’s willingness to undergo a fingerprint-based criminal records check for the purpose of working as a security officer. The consent must be provided no more than one year before the fingerprint request is submitted.
U.S. CONGRESSIONAL LEGISLATION
CAMPUS SAFETY. A bill (H.R. 4460) introduced by Rep. Vito Fossella (R-NY) would establish a grant program for campuses to install professional fire alarm detection systems or other fire detection and prevention technologies. The systems would be installed in student housing, dormitories, and other buildings controlled by colleges or universities.
H.R. 4460 has four cosponsors and has been referred to the House Education and Workforce Committee.
EXPLOSIVES. A bill (H.R. 4422) introduced by Rep. Christopher Shays (R-CT) would require each state to submit a written report on state agencies that store or keep explosive materials. The report, which would be submitted to the Attorney General at regular intervals, would also note which materials had been transported in interstate or foreign commerce.
From these reports, the Attorney General would develop regulations governing the storage of explosive materials as well as security standards and requirements for CCTV or alarm systems. If a state or agency failed to comply with the regulations, the federal government could reduce its funds by 10 percent.
The bill has two cosponsors and has been referred to the House of Representatives’ Judiciary Committee.
CARGO SECURITY. A bill (H.R. 4373) introduced by Rep. Edward Markey (DMA) would require that the Homeland Security Department establish a system to inspect all cargo transported on passenger aircraft operated by a domestic or foreign air carrier.
H.R. 4373 has two cosponsors and has been referred to the House Homeland Security Committee.
DISASTER MANAGEMENT. A bill (S. 2043) introduced by Sen. Richard Durbin (D-IL) would provide grants for state and local governments to conduct disaster management drills such as mass evacuation exercises for urban and suburban areas. To receive a grant, state or local governments must develop a detailed and comprehensive evacuation plan for each area in their jurisdiction.
S. 2043 has two cosponsors and has been referred to the Senate Homeland Security and Government Affairs Committee.
STATE LEGISLATION
Virginia
SECURITY LOCKS. A new law (formerly H.B. 2448) in Virginia requires that landlords install new locks or security devices on apartments rented by tenants who have a restraining order against a former cotenant. The tenant must present a copy of the restraining order to the landlord.
The landlord must then install a new lock or other security device on the exterior doors of the unit at the landlord’s cost or allow the tenant to install such devices at the landlord’s cost. The new device may not cause permanent damage to the building, and the landlord must be given duplicate keys or instructions on how to use the security device. The landlord may not provide keys or information to the person named on the restraining order.
CAMPUS POLICE. A new bill (H.B. 154) under consideration in the Virginia Assembly would require that campus police officers immediately notify local law enforcement agencies if a death occurs on campus or an allegation of rape has been made. Campus police and other campus security personnel would be required to participate in any subsequent investigation launched by local law enforcement.
Missouri
SCHOOL SECURITY. A bill (H.B. 1218) before the Missouri House of Representatives would prohibit bullying in schools. The bill would also require that school districts adopt policies against harassment, intimidation, and bullying.
This column should not be construed as legal or legislative advice.
