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Legal Report January 2008


CONCEALED WEAPONS. A federal district court has ruled that an Oklahoma law allowing employees to carry weapons onto the private property of their employer is invalid because it violates federal laws requiring that companies prevent workplace violence.

The law, which was enacted in 2004, made it illegal for companies to keep employees from bringing guns into the workplace. The law allowed workers to transport and store legally obtained and registered firearms in a locked vehicle in a company parking lot.

ConocoPhillips, which operates several facilities in Oklahoma, brought the lawsuit claiming that the law violated the company’s private property rights. The company also claimed that the law contradicted the Occupational Safety and Health Act of 1970 (the OSH Act).

The court ruled that the law did not violate the property rights of ConocoPhillips because the company did not present proof that it had been economically harmed by the law. However, the court ruled that the law does prevent the company from complying with the OSH Act. The act requires that companies mitigate possible hazards in an effort to prevent workplace violence.

In the written opinion of the decision, the court said that it could “imagine no other condition on company property that more significantly increases the risk of death or serious bodily harm to employees in a situation involving workplace violence” than having firearms at work. In issuing a permanent injunction invalidating the state law, the court noted that the measure “criminally prohibits an effective method of reducing gun-related workplace injuries and cannot coexist with federal obligations and objectives.” (ConocoPhillips Company v. Henry, U.S. District Court for the Northern District of Oklahoma, No. 04-CV-820-TCK-SAJ, 2007)

CAMPUS SECURITY. A federal appeals court has ruled that a university student who was sexually assaulted by a football recruit may sue the university. The court noted that several sexual assault and harassment complaints had been filed against the university’s football program but the university failed to take action.

On December 6, 2001, a group of football recruits was visiting the University of Colorado (UC) campus. A tutor for the athletic department asked another student, Lisa Simpson, if she could bring two football players and two recruits by Simpson’s apartment. Simpson told the tutor that she and a few female friends would be spending the evening at her apartment and that the recruits could stop by.

At around midnight, 20 recruits and players arrived at Simpson’s apartment. Some of the recruits left a short time later but most remained. The tutor told one recruit who was leaving that he should stay because “it was about to go down.” The recruit later testified that he interpreted this statement to mean that the recruits could have sex with the female students.

Simpson, who had been drinking, went to bed about an hour after the recruits arrived. She awoke some time later to find two of the recruits in her room. She was repeatedly raped. Four other women who lived in the apartment or nearby were also assaulted that night.

Simpson and her roommates filed a lawsuit against the school under Title IX claiming that the university and the physical education department knew about previous assaults by recruits and should have supervised the visits. (Title IX subjects federally funded schools to liability if they are deliberately indifferent to sexual harassment.)

UC requested summary judgment—a hearing based on the facts of a case without a trial—claiming that it did not know the sexual assaults were occurring and asserting as part of its defense that no representative of the school was present at the assaults. The U.S. District Court for the District of Colorado agreed with UC and granted the summary judgment.

In her appeal, Simpson contended that the school had been notified of sexual assaults by recruits in 1997, 1998, 1999, and 2000. Further, the athletic department had taken no action when confronted with the crimes. Coach Gary Barnett took no steps to train student hosts, such as the tutor in this case, on how to address sexual harassment and assault issues.

Simpson also pointed out that Barnett invited one of the recruits involved in Simpson’s assault to play for CU. When school administrators told Barnett that changes must be made in the team’s recruitment policy, he resisted. Barnett told the administrators that schools all over the country showed recruits a good time and that if such activities were not allowed at CU, the team would be at a competitive disadvantage.

Based on this evidence, the court overturned the summary judgment allowing the case to go to trial. The court noted that “the need for different training was so obvious, and the inadequacy so likely to result in violations, that [Barnett] could reasonably be said to have been indifferent to the need.” (Simpson v. University of Colorado, U.S. Court of Appeals for the Tenth Circuit, No. 06-1184, 2007)


TERRORISM INSURANCE. A bill (H.R. 2761) that would reauthorize the government-based terrorism insurance program for ten more years has been approved by the House of Representatives. The Senate has agreed to consider the measure. It has been referred to the Senate Banking, Housing, and Urban Affairs Committee.

Under the bill, the terrorism insurance program, which was slated to expire at the end of 2008, would be extended until the end of 2017. The commission, established in the previous authorization bill to study how to move terrorism insurance into the private market, concluded that private terrorism insurance was highly unlikely in the foreseeable future and that the government program was the only way to provide such insurance.

The terms of the previous program (including deductibles and co-pays) will remain in place under H.R. 2761. However, the previous distinction between foreign and domestic acts of terrorism—the prior bill covered only the former—would be eliminated under the bill.

EXPLOSIVES. A bill (H.R. 1680) that would regulate the sale and purchase of ammonium nitrate has been approved by the House of Representatives. The bill is now pending before the Senate Homeland Security and Government Affairs Committee. Ammonium nitrate is a critical ingredient used in making explosives.

Under the bill, the government would maintain a registry of persons who have purchased the chemical. Fines of up to $50,000 could be levied at anyone who purchases ammonium nitrate without registering. Anyone who sells the substance would have to maintain a record of all sales for a three-year period. If approved, the provision would not preempt stronger state laws.

CAMPUS SAFETY. A bill (S. 2084) introduced by Sen. Patrick Leahy (D-VT) to help colleges and universities improve campus safety in the wake of the Virginia Tech shooting has been approved by the Senate Judiciary Committee and is currently pending before the full Senate.

The bill would establish a matching grant program to help schools purchase and install surveillance equipment and establish hotlines for reporting potentially dangerous students and situations. Grant money could also be used to secure school facilities.

S. 2084 contains a provision that would update the National Instant Criminal Background Check System (NICS). Similar to a House bill (H.R. 2640), the Senate measure would provide grant money for states to input into NICS any of the state criminal records that would make it illegal for persons to own firearms.

Another provision in the bill would redefine the term “public safety officer” to include law enforcement officers serving private institutions of higher education and rail carriers. The designation would mean that all such officers could qualify for line-of-duty death and disability benefits.

FOOD SAFETY. A bill (H.R. 3610) introduced by Rep. John Dingell (D-MI) contains several provisions designed to increase the safety of the food supply.

Under the bill, all importers must meet U.S. food-safety standards and they must obtain certification before they are allowed to import food. The government would also be required to establish a program through which those companies importing food into the United States could agree to increase food safety and security in exchange for an expedited inspection process. In addition, the bill would mandate that the federal government conduct research on food testing and sampling methodologies.

In the case of a food-safety issue that poses a health risk, the government would be required to issue an immediate recall notice.

H.R. 3610 has four cosponsors and has been referred to the House Energy and Commerce Committee, which Dingell chairs.

RAIL SAFETY. A bill (H.R. 2095) introduced by Rep. James Oberstar (D-MN) that is designed to improve railroad safety has been approved by the House of Representatives and has been taken up by the Senate. The bill is currently pending in the Senate Commerce, Science, and Transportation Committee.

The bill would reduce the number of hours a rail employee is required to work and increase the amount of time off between shifts.

The measure would also provide whistleblower protections for those employees who cooperate with a safety investigation, furnish rail accident information, or who refuse to authorize the use of safety equipment, tracks, or structures that are in a hazardous condition. Such employees would be entitled to damages.

Those guilty of safety violations under the bill would face criminal penalties.



RETAIL THEFT. A new Arizona law (formerly S.B. 1547) establishes a state task force to investigate organized retail theft. Composed of law enforcement, public safety, and judicial professionals, the task force would investigate organized retail theft in the state and determine where the problem is most prevalent and how it can be combated.

The task force would also work with federal law enforcement to investigate and prosecute such crimes. As part of its duties, the task force would recommend statutory changes to help fight organized retail theft.


DATA PROTECTION. California Governor Arnold Schwarzenegger has vetoed a new law (formerly A.B. 779) that would have required retailers to increase security in an effort to prevent identity theft.

The bill would have required that retailers implement security standards established for credit card information. In addition, retailers would have been responsible for notifying consumers that their credit card information had been compromised and for replacing the cards.

In his announcement of the veto, Schwarzenegger claimed that the bill was too broad and would impose too great a burden on small business owners.

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