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Legal Report October 2011


UNREASONABLE FORCE. A police officer is guilty of gross negligence after shooting an unarmed man who was being arrested for failure to pay child support. The officer, who claimed that he intended to draw his Taser, violated the law when he neglected to verify that he had mistakenly drawn his gun, according to a federal appeals court. The officer’s actions, ruled the court, were objectively unreasonable.

In 2003, a Maryland court ordered Frederick Henry to pay child support or face jail time. After Henry failed to comply, a warrant was issued for his arrest. On October 20, 2003, Officer Robert Purnell attempted to serve the warrant at Henry’s last known address. Purnell approached the home and spoke with a man sitting on the front porch. The man said he was Henry’s friend and would relay Purnell’s message to Henry’s wife, who was inside the house. The man also told Purnell that Henry worked at American Paving Company.

Purnell visited American Paving Company where an employee confirmed that Henry had not worked there for three months. When the employee showed Purnell a photo of Henry, Purnell recognized the “friend” he had spoken to outside Henry’s home. Purnell returned to the home and spoke with Henry’s wife. She said that Henry was not home but that he worked for a man in a white pickup truck. Later, Henry’s wife testified that Purnell seemed “very upset” and said he was “going to get [Henry] for pulling a whammy.”

Three days later, Purnell spotted a white pickup truck. He followed the vehicle until it parked in the driveway of Henry’s home. When Henry exited the vehicle, he turned and began to run towards his house. Purnell ran after Henry.

When Purnell was about five to 10 feet away from Henry, he pulled his service revolver, a Glock handgun. Purnell did not issue any warnings, commands, or instructions before firing a single shot and hitting Henry in the elbow. At the scene, Purnell indicated that he did not mean to shoot Henry, but accidentally grabbed his gun instead of his Taser.

Henry sued Purnell for violation of his Fourth Amendment right to be free of unreasonable search and seizure. Purnell requested summary judgment—a hearing based on the facts of a case without a trial. Purnell argued that he was entitled to qualified immunity, which is a doctrine that shields government employees from reasonable actions undertaken in good faith.

A series of legal motions began, culminating in a June 2008 decision by the U.S. District Court for the District of Maryland granting Purnell’s summary judgment. Henry appealed the verdict.

The U.S. Court of Appeals for the Fourth Circuit overturned the lower court’s decision, ruling in favor of Henry. The court noted that there was no reason for Purnell to suspect that Henry posed any threat. Henry had no criminal history, and the police had ample information about his whereabouts. In the written opinion of the case, the court noted that “a reasonable officer in these circumstances would have no grounds for believing Henry was armed or dangerous.”

The court was not swayed by Purnell’s contention that he mistakenly drew his gun instead of his Taser. The evidence, according to the court, showed that confusion between the two weapons was unlikely. The Taser was carried a foot lower than the Glock, the two weapons were markedly different weights, the Taser had a thumb safety unlike the gun, and Purnell had time to look and see which weapon he was using before firing. However, even if Purnell was genuinely confused, that fact is irrelevant to the legal decision, according to the court. “Purnell fails to understand that his subjective beliefs or intentions have no place in our constitutional analysis, which concerns the objective reasonableness of the officer’s conduct in light of the relevant facts and circumstances,” wrote the court. (Henry v. Purnell, U.S. Court of Appeals for the Fourth Circuit, No. 08-7433, 2011)

AIRPORT SCREENING. A federal appeals court has ruled that the U.S. Department of Homeland Security (DHS) should have solicited public comments via the rulemaking process before it deployed controversial body scanners at airports.

The lawsuit was brought by the Electronic Privacy Information Center (EPIC), an advocacy group that addresses civil rights and privacy issues, on behalf of the flying public. EPIC objected to the use of body scanners, called advanced imaging technology (AIT) by the court, based on privacy and health concerns.

In May of 2009, EPIC sent a letter to the Transportation Security Administration (TSA) requesting that the agency stop using the scanners pending a 90-day formal rulemaking process. The TSA responded with a letter addressing EPIC’s concerns but ignoring the rulemaking request. A year later, EPIC sent another letter requesting the issuance of a rule and arguing that the use of AIT violated the Privacy Act, the Religious Freedom Restoration Act, and the Fourth Amendment. The TSA responded to some of EPIC’s concerns but declared that it did not have to issue a rule each time it changed screening procedures. In July 2010, EPIC filed a lawsuit against the DHS, the parent agency of the TSA.

In responding to the lawsuit, DHS argued that it did not have to issue a rule on the use of AIT at EPIC’s request. The agency contended that EPIC actually sought the repeal of the program, not a rulemaking process. The DHS further claimed that the AIT was an improvement of an existing program and, thus, not a substantive change that would have required the issuance of a rule.

The U.S. Court of Appeals for the District of Columbia disagreed with the government’s reasoning. The court ruled that the DHS should have engaged in the rulemaking process because the AIT represents such a major impact on the public. In the written opinion of the case, the court noted: “Indeed, few if any regulatory procedures impose directly and significantly upon so many members of the public. Not surprisingly, therefore, much public concern and media coverage have been focused upon issues of privacy, safety, and efficacy, each of which no doubt would have been the subject of many comments had the TSA seen fit to solicit comments upon a proposal to use AIT for primary screening.”

The court ruled that the government must “act promptly” to issue a rule and solicit public comment. However, because rescinding the AIT program would disrupt security operations, the court ruled that it should stay in place during the rulemaking process. (Electronic Privacy Information Center v. United States Department of Homeland Security, No. 10-1157, U.S. Court of Appeals for the District of Columbia, 2011)


CHEMICAL FACILITY SECURITY. A bill (S. 473) that would extend the government’s Chemical Facility Anti terrorism Standards (CFATS) program through October 2014 has been approved by the Senate Committee on Homeland Security and Governmental Affairs. The measure must now be considered by the full Senate.

Under CFATS, chemical facilities must work with the Department of Homeland Security (DHS) to develop a security program based on their facility’s risk level. If the program is not extended, it will expire at the end of this year.

In addition to renewing the requirements already set out by CFATS, S. 473 would establish a chemical security training program. The program, which would be administered by the Federal Emergency Management Agency (FEMA), would be voluntary and would help chemical facilities prepare for and respond to emergencies such as terrorism and natural disasters. The program would also extend training to individuals and organizations located near chemical facilities.

To augment the training program, the bill includes a voluntary program allowing chemical facilities to conduct security exercises to test plans and procedures. The exercises, which would be spearheaded by FEMA, would involve chemical facilities as well as federal, state, and local governments. Live exercises would be conducted for the highest risk facilities. Exercises would be tailored to individual facilities.

The bill stipulates that a facility’s security program may not be rejected by DHS because the facility chose not to participate in the voluntary training and exercise programs. Similarly, a plan may not be rejected due to the presence or absence of a particular security measure.

In introducing the bill, Sen. Susan Collins (R-ME) specifically addressed the controversial issue of inherently safer technologies (IST). Collins noted that the bill does not address IST because it should not be mandated by the government. “Currently, DHS cannot dictate specific security measures, like IST. Nor should it,” Collins said. “The federal government should set performance standards, but leave it up to the private sector to decide precisely how to achieve those standards.”

ECONOMIC ESPIONAGE. A bill (S. 678) introduced by Sen. Herb Kohl (D-WI) would increase penalties for economic espionage. The bill would also require that the U.S Sentencing Commission consider a tiered system to address different types of espionage.

The bill would increase the prison term from 15 to 20 years in cases where trade secrets are funneled to a foreign government or agent. The sentencing commission would determine whether to apply a tiered system to cases where a person steals a trade secret and transmits or attempts to transmit the trade secret outside of the United States. Under this system, a further sentencing enhancement would apply to those who succeed in providing secrets to a foreign government.

The bill has two cosponsors and has been referred to the Senate Judiciary Committee.

CAMPUS SAFETY. A bill (H.R. 2342) introduced by Rep. Bobby Scott (D-VA) would establish a National Center for Campus Public Safety. The center would train public safety agencies and their partners on campus crime issues and increase cooperation between law enforcement and mental health agencies. The center would be tasked with collecting and disseminating information about best practices in campus safety as well as developing protocols to prevent, respond to, and recover from emergencies on campuses.

The bill has one cosponsor and has been referred to the House Judiciary Committee.


WEAPONS. Maine Governor Paul LePage signed a law (formerly H.B. 35) making it illegal for employers to prevent employees from storing concealed firearms in their cars on company property. Under the bill, the employee must have a valid permit to carry a concealed firearm. The vehicle must be locked and the firearm out of sight.

The law also provides immunity to companies. Employers cannot be held liable for damages, injury, or death resulting from the stored firearms, even if the fire arm is stolen from an employee’s car. An exception is made in cases where the employer, or an agent of the employer, intentionally solicits or procures an action that causes injury.

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