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Legal Report July 2006


FALSE ARREST. An appeals court has ruled that an airline employee subjected to a mock arrest as a workplace prank may sue the police officers involved in the prank. However, the employee may not sue her employer because the prank was meant as a joke and was not intended to cause emotional distress.

Marcie Fuerschbach worked for Southwest Airlines as a customer service representative in Albuquerque, New Mexico. Part of the corporate culture at Southwest is a lighthearted working atmosphere where jokes and pranks are encouraged. When newly hired employees successfully completed their probationary period, their coworkers frequently marked the occasion with a prank. For example, one employee was led onto an airplane and flown to another city. Another worker was dressed in a hula skirt and made to perform for customers. Fuerschbach was aware of this tradition and expected that her colleagues would play a prank on her at the end of her probationary period.

Fuerschbach’s supervisor, Tina Marie Tapia, met with other customer service supervisors to plan a prank. The group decided to subject Fuerschbach to a mock arrest. Tapia arranged the arrest with two Albuquerque police officers assigned to the airport.

The two armed and uniformed officers approached Fuerschbach, who was working at a crowded ticket counter. The officers told Fuerschbach that they had to talk with her. They led her to the end of the ticket counter and told her that in the course of completing her background check the police had uncovered a warrant for her arrest. Fuerschbach tried to tell the officers that there was a mistake. The officers interrupted her and told her to turn in her Southwest badges and inquired whether anyone could bail her out of jail. Fuerschbach began crying and asked whether the arrest was a joke. The officers responded by handcuffing her.

A crowd of customers and officers had gathered as the officers led Fuerschbach to an elevator 15 feet away. When Fuerschbach and the officers reached the elevator, Southwest employees yelled “Congratulations for being off probation!” The officers removed the handcuffs, and Fuerschbach’s coworkers began clapping and cheering. However, Fuerschbach continued to cry. Later that day, her coworkers found Fuerschbach crying in the bathroom. She was sent home. Fuerschbach began seeing a psychologist and was treated for post-traumatic stress disorder.

Fuerschbach sued the City of Albuquerque for violation of her civil rights. She also sued Southwest Airlines for false arrest, assault, and intentional infliction of emotional distress.

The U.S. District Court for the District of New Mexico found that the city could not be sued because it was shielded by a qualified immunity—a legal theory that protects government agents from civil liability under all but the most egregious circumstances. The court also granted summary judgment to Southwest, ruling that the state’s workers’ compensation laws covered Fuerschbach’s claims because the incident in question arose out of her employment. Under New Mexico law, employees are not allowed to prevail on civil lawsuits that are covered by workers’ compensation. Fuerschbach appealed the ruling.

The U.S. Court of Appeals for the Tenth Circuit found that Fuerschbach could pursue her litigation against the City of Albuquerque but could not take her claims against Southwest to a jury.

The appellate court found that, though the arrest was meant to be a prank, Fuerschbach believed that it was an actual arrest. If she believed this, noted the court, the seizure was unreasonable. The court ruled that the officers “not only lacked a warrant or probable cause for seizing Fuerschbach, they lacked any legal basis for doing so.” The court also noted that because it should have been clear to any officer that seizing a private citizen without any legal basis was unlawful, the lower court’s decision was incorrect. Fuerschbach, ruled the court, could take her civil rights claim to a jury.

The appeals court upheld the district court’s ruling for Southwest. Under New Mexico law, any injury arising out of employment is covered under the workers’ compensation law and cannot be pursued in civil court. While the prank Fuerschbach endured is not a common one, ruled the court, the horseplay endemic to such a prank is covered under the law.

In her lawsuit, Fuerschbach argued that intentional infliction of emotional distress was not covered by the workers’ compensation law. Therefore, she argued, she should be allowed to sue her employer. The appeals court disagreed and upheld the lower court’s summary judgment. The court noted that “although they grossly miscalculated Fuerschbach’s reaction to the mock arrest,” Southwest employees did not mean for Fuerschbach to suffer psychological injury. (Fuerschbach v. Southwest Airlines, U.S. Court of Appeals for the Tenth Circuit, No. 04-2117, 2006)


PORT SECURITY. A port security bill (H.R. 4954) introduced by Rep. Daniel Lungren (R-CA) has been approved by the House Homeland Security Committee’s Subcommittee on Economic Security, Infrastructure Protection, and Cybersecurity. The bill is now under consideration by the full Homeland Security Committee.

The bill would require that the Department of Homeland Security (DHS) develop and implement a strategic plan to enhance maritime security. The measure would also require that DHS develop and implement a plan to improve existing programs that identify high-risk containers moving through the international supply chain.

H.R. 4954 would require that states submit to the federal government biographic information on current and future employees who have access to secured areas of seaports. The DHS would compare this information to data on terrorist watch lists.

The measure would require that DHS establish minimum standards and verification procedures for securing containers in transit, including international standards for containers moving through the global supply chain. DHS would also submit a plan to Congress for deployment of radiation detection equipment at all U.S. ports.

PRIVACY. A bill (S. 2389) introduced by Sen. George Allen (R-VA) that would make it illegal to solicit, acquire, or sell another person’s confidential telephone records without that person’s consent has been approved by the Senate Commerce, Science, and Transportation Committee.

The measure specifically prohibits pretexting, where individuals obtain records by misrepresenting themselves and their motives. (Pretexting is sometimes used by investigators to obtain information on a subject of an investigation.) S. 2389 also requires that telephone companies comply with minimum security requirements, similar to those required of financial institutions, to protect customer records.

The bill would increase penalties for those who violate the law. Individuals would be subject to an $11,000 penalty for each record obtained, up to a total of $11 million. Phone companies would be fined $30,000 for each record stolen, up to $3 million.

Under S. 2389, telephone companies would be given the authority to take legal action against those who have illegally acquired confidential telephone records.

A similar provision (S. 2178) has been approved by the Senate Judiciary Committee. S. 2178 would prohibit obtaining confidential phone records by fraud or any other unauthorized means from a telecommunications carrier or IP-enabled service provider. Under the measure, the sale of such records by anyone would be punishable by up to five years in prison. The penalty doubles for repeat violations within a 12-month period and for violations involving more than $100,000 or more than 50 customers. Law enforcement activities are exempt.

CARGO SECURITY. A bill (H.R. 4899) introduced by Rep. Jerrold Nadler (D-NY) would require that all cargo containers bound for the United States be scanned using the best-available technology—including radiation and density scanning—before they are loaded onto a ship. These scans would then be reviewed by U.S. security personnel before the container is loaded. Once scanned, the containers would be sealed with a device that would indicate whether the container has been tampered with in transit. Under the bill, this device would have to have the capability to notify officials if a breach has occurred before the container enters a U.S. port.

The bill has 30 cosponsors and has been referred to the House Homeland Security Committee’s Economic Security, Infrastructure Protection, and Cybersecurity Subcommittee.

LIVESTOCK IDENTIFICATION. A bill (H.R. 3170) introduced by Rep. Steve King (R-IA) would establish an electronic livestock-identification system capable of tracing all U.S. livestock from the time animals are moved from their original premises to the time of slaughter. (Under the bill, livestock is defined as cattle, swine, sheep, goats, and poultry.) All records would be available within 48 hours of an animal’s relocation. The system would also track all relevant livestock information including identification number, species, and date of birth. The tracking system would be maintained in a centralized livestock data system.

Under H.R. 3170, the Secretary of Agriculture would be required to establish the identification system and verify that each animal, or group of animals, subject to the livestock system is properly identified when that animal is entered into the commerce stream.

States may obtain information through the system, but they may not release that data to the public. Under the bill, the information would be considered privileged and confidential.

The government may release information from the system for reasons of public health or disease or pest control. Information would also be released to: livestock owners, upon request; the Secretary of Agriculture, a state, or a tribal agency, for animal disease surveillance; the Attorney General, for criminal investigation or prosecution; the Secretary of Homeland Security, for national security; the Secretary of Health and Human Services, for public-health protection; or a foreign government, if necessary to trace livestock threatened by disease or pest.

H.R. 3170 has no cosponsors and has been referred to the House Agriculture Committee.

EXPLOSIVES. A bill (H.R. 4877) introduced by Rep. Heather Wilson (R-NM) would require that the Attorney General conduct a study on how private entities and state and local governments store explosive material that has been shipped via interstate commerce. After completing the study, the government would establish regulations for minimum security standards required for the safe and secure storage of such materials. Violation of the regulations would be punishable by a fine of $500 per pound of explosives.

H.R. 4877 has one cosponsor and has been referred to the House of Representatives Judiciary Committee.

AIRCRAFT SECURITY. A bill (H.R. 4353) introduced by Rep. Christopher Shays (R-CT) would require that all passengers flying on aircraft that is also carrying uninspected cargo be notified by DHS. The passengers would be told that the aircraft’s cargo has not been screened for explosives or other hazardous materials.

H.R. 4353 has two cosponsors and has been referred to the House Homeland Security Committee’s Subcommittee on Economic Security, Infrastructure Protection, and Cybersecurity.



IDENTITY THEFT. Minnesota Governor Tim Pawlenty has offered several proposals designed to combat identity theft in the state. The proposals are currently under review by state agencies. They will subsequently be introduced in the Minnesota Legislature.

One proposal would make driver’s license and motor vehicle records accessible only in cases of public health and safety. In all other instances, state motor vehicle agencies would be required to keep such information private. The proposals would also prohibit the marketing or resale of such data and require random audits by state officials.

Another proposal would make it illegal to sell, obtain, disclose, or receive an individual’s telephone records without the permission of the individual. It would also establish security standards for telecom companies and would require that those companies report any data breaches.

Limiting the use of Social Security numbers (SSNs) as identifiers is also on the governor’s agenda. In addition to prohibiting the sale or disclosure of an individual’s SSN, the proposal would prohibit businesses from using an SSN as a person’s identifier within that business. Exceptions are provided in situations where an SSN is required, such as to access tax information or obtain a credit report.

Another proposal would reverse the state’s data privacy policy. Currently, information is available to the public unless specifically prohibited from disclosure by law. Under the new proposal, the opposite would be true—all information would be kept private unless specifically designated, by law, to be released to the public.

This column should not be construed as legal or legislative advice.