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Legal Report October 2006


NEGLIGENCE. A federal appeals court has ruled that a man who was beaten by a security officer may pursue his lawsuit against the officer’s employer. The court disagreed with a lower court, which ruled that the company could not be held liable because the beating occurred outside the scope of the officer’s employment.

One evening, Lewis Pratt was working as a uniformed contract security officer at the Prairie View apartment complex in Chicago when he saw Joseph Pressley coming out of an apartment holding what appeared to be a bag of marijuana. Pratt confronted Pressley, and the two argued. Pressley ran away but left his car behind in the apartment parking lot. When Pressley returned to get his car later that night, Pratt attempted to apprehend him. During the struggle, Pratt’s finger was slammed in Pressley’s car door. As required by his employer, Patrick & Associates Detective Agency, Pratt reported the incident to the police.

The police saw Pressley’s car and subsequently arrested Pressley and took him to the police station. The police telephoned Pratt and told him that Pressley was in custody. Pratt came by the police station to drop off his report on Pressley and persuaded the officer on duty to let him visit the prisoner. Pratt beat Pressley with a billy club and sprayed him with mace. (The beating took place after Pratt mistakenly beat Zachary Jones—a 14-year-old boy in an adjoining cell.) Pratt was fired from his security officer position two days later.

Jones and Pressley filed a number of lawsuits, one against Pratt’s employer for negligent training and supervision. The U.S. District Court for the Northern District of Illinois found that the company was not liable for Pratt’s actions because the employee was acting outside of the scope of his employment when he beat Pressley. Attorneys for Pressley appealed the decision.

The U.S. Court of Appeals for the Seventh Circuit overturned the decision, ruling that a jury should decide whether Pratt was acting within the scope of his employment when the beating occurred. The court noted that the evidence suggested that the beating was an extension of Pratt’s job as a security officer. The point of the attack was retribution for the altercation at the Prairie View Apartments, which did occur within the scope of Pratt’s employment. According to the evidence presented in court, Pratt was still on duty and still carrying the weapons given to him by his employer.

The court further surmised that the use of force is often part of a security officer’s job. In the written opinion of the case, the court noted that “physical confrontations are part of a security guard’s job, and it’s not really surprising that once in a while one of them will go too far.” (Jones v. Patrick & Associates Detective Agency, Inc., U.S. Court of Appeals for the Seventh Circuit, No. 05-1493, 2006)

WHISTLEBLOWERS. The Texas Supreme Court decided that an employee cannot sue his employer for wrongful termination under a state whistleblower statute. The court ruled that the employee, who was fired when he tried to find out whether a crime had occurred on company property, was not asked to commit a crime himself and, therefore, could not pursue his claim.

Claude D’Unger was an officer for the Ed Rachal Foundation, a charitable organization that owns a ranch in Webb County, Texas. The ranch, which is used for wildlife and farming research, covers more than 100 square miles, including five miles along the Mexican border. Migrants from Mexico frequently crossed into the United States via this five-mile stretch of land.

D’Unger was suspicious that the ranch foreman, Ed DuBose, was harassing the migrants. D’Unger told the foundation’s CEO, Paul Altheide. In response, Altheide told D’Unger to “drop it.”

In September 1997, DuBose apprehended three teenage Mexican nationals trying to cross the border. He handcuffed them and turned them over to Border Patrol agents. D’Unger, who saw a log of the

incident at the ranch, called the Border Patrol to ask about the teenagers. The Border Patrol told D’Unger that they had no knowledge of the incident.

Suspecting foul play, D’Unger contacted a congressman, two sheriffs, the Texas Attorney General’s office, a senator, the Internal Revenue Service, a district judge, and the Mexican consulate about the incident. (D’Unger’s fears were unfounded. The Border Patrol later found records that DuBose had delivered the three teenagers the same day he apprehended them.) Altheide learned of D’Unger’s actions and fired him.

D’Unger sued the foundation for wrongful termination, basing his charge on the state’s whistleblower statute. The law makes it illegal to terminate an employee based solely on the worker’s refusal to perform an illegal act. A jury found in favor of D’Unger and awarded him $457,000 in lost wages and attorney’s fees.

The foundation appealed the decision to the Court of Appeal for the Thirteenth District of Texas. That court upheld the lower court’s decision. The appeals court concluded that there was evidence to support wrongful termination because Altheide’s instructions to D’Unger could be seen as an attempt to cover up illegal conduct on the ranch. The foundation appealed to the Texas Supreme Court.

The supreme court overturned the decision, ruling that the state law protected employees asked to commit a crime, not those who are asked not to report one. The court noted that failing to report a crime is not illegal unless specifically stated in the law—such as failing to report child abuse, for example. D’Unger could not sue his employer for wrongful termination, ruled the court, because he neither did, nor was asked to do, anything criminal. (The Ed Rachal Foundation v. Claude D’Unger, Supreme Court of Texas, No. 03-1101, 2006)


ELECTRONIC DISCOVERY. The U.S. Supreme Court has adopted new rules of civil procedure for courts to follow when dealing with electronic discovery issues. The court adopted without amendment the rules as proposed in 2004. They are designed to clarify litigants’ responsibilities regarding the presentation of electronic evidence at trial. Unless Congress intervenes, they will become effective December 1, 2006.

Under the rules, both parties to a lawsuit must discuss electronic discovery issues at preliminary meetings. The issues to be discussed include the format in which data should be provided and whether any information is privileged.

The rules establish that a company responding to a request for electronic documents need not provide the information if providing it presents an undue burden or excessive cost. The other party to the lawsuit may seek to compel delivery of the information. In this case, the company claiming an undue burden must show that the information is not “reasonably accessible.” However, even if this is proved, the court can still order discovery and may specify the terms and conditions.

If, in complying with an electronic-discovery order, a company inadvertently releases privileged information, the company receiving the information must report that fact. Then, the receiving party must return the information, protect it from further disclosure, or destroy it.

Finally, the rules also address the routine maintenance of computer systems. Under the rules, a court cannot issue sanctions against a company for the destruction of electronic information due to routine, good faith operation of a system. Sanctions are allowed only in “exceptional circumstances,” to be determined on a case-by-case basis.


HOMELAND SECURITY. The appropriations bill (H.R. 5441) funding the Department of Homeland Security (DHS) has been approved by the House of Representatives and is now pending in the Senate. During debate on the measure, senators tried to add $33 billion in funds for transit security and grants to states that had suffered substantial cuts in grants this year, such as New York. However, all amendments adding funds were voted down.

An amendment that was approved would establish the Federal Emergency Management Agency (FEMA) as an independent agency within the DHS. This means that, like the Coast Guard, FEMA would not be subject to reorganization or budget cuts at the discretion of DHS. The FEMA administrator would report directly to the Secretary of the DHS but would also have direct access to the President. The head of FEMA would also be able to make recommendations directly to Congress.

CHEMICAL FACILITIES. A bill (S. 2145) introduced by Sen. Susan Collins (RME) that would enhance security at chemical facilities has been approved by the Senate Homeland Security and Governmental Affairs Committee, and the Senate has agreed to consider the measure.

The bill would require the Secretary of Homeland Security to issue regulations establishing a risk-based security plan for chemical facilities that could be applied as needed by facility owners. Owners would be required to conduct vulnerability assessments, site security plans, and emergency response plans. The measure would allow the head of DHS to order mandatory security measures if additional security was deemed needed to respond to a specific threat assessment or a threat against chemical facilities in general.

FIRST RESPONDERS. A bill (S. 1554) that would establish a grant program to improve overall  communications equipment for first responders has been approved by the Senate Homeland Security and Governmental Affairs Committee. The measure will now be considered by the full Senate.

The bill, developed to help avoid the communications problems among first responders evidenced by hurricane Katrina, would establish a grant program to identify, develop, or modify existing equipment, technologies, and services to address the needs of federal, state, and local first responders. The grant program would also encourage study on technologies that are close to market-ready.

DATA PROTECTION. A bill (H.R. 4157) that is designed to improve the coordination and protection of health information has been approved by the House Ways and Means Committee. It is not yet clear whether the measure will continue on to a full vote in the House of Representatives.

Under the measure, the Secretary of Health and Human Services would be required to develop a strategic plan to coordinate information regarding the implementation of standards for transmitting, coding, and protecting consumer health information.


North Carolina

BACKGROUND SCREENING. A bill (S.B. 2002) would require that all applicants to any North Carolina university undergo a criminal records check. The bill, the first of its kind in the nation, was introduced after two University of North Carolina students were killed by their classmates. Both murderers had lied on their applications and denied having a criminal record to gain admission.


ALARM MONITORING. A new Florida law (formerly H.B. 1351) requires that all alarm monitoring companies attempt to contact property owners on two different phone numbers before calling for police assistance. The law, designed to help reduce the number of false alarms, is the first state law of its kind in the country, though many municipalities have already enacted similar provisions.

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