In its highly unusual decision, a three-judge panel of the Court of Appeals for the District of Columbia Circuit said the constitutionality of the 1996 amendment to the Gun Control Act of 1968 (GCA) had not been fully briefed by the parties during the original appeal last summer. After granting the federal government a rehearing, the judges became persuaded that they had acted imprudently. Despite its earlier view, the court found that a rational basis did exist for Congress to bar certain misdemeanants _ those convicted of domestic violence offenses - from possessing firearms while not barring other misdemeanants and felons. Likewise, the law violated neither the "right to bear arms" provision of the Second Amendment nor the Tenth Amendment restriction on the exercise of federal power.

After hearing more detailed arguments, the appeals court panel decided that imposing a harsher penalty on domestic violence misdemeanants than on felons was, therefore, not irrational and not unconstitutional. Congress likely recognized that

The Lautenberg/Barr Amendment altered the GCA by prohibiting individuals with convictions for misdemeanors involving domestic violence from possessing handguns. The GCA contains a "public interest exception" that excludes from the law's prohibition firearms issued by governmental bodies. However, because of a legislative quirk the exception applies to felons but not to domestic violence misdemeanants. Since the amendment had retroactive application, dozens of working police officers became no longer eligible to possess their service weapons. Many law enforcement agencies have placed these individuals in non-armed assignments until litigation resolves the constitutional questions. Ultimately, the officers may lose their jobs since virtually all police and sheriff's departments mandate that personnel carry a handgun while on duty. 

The case, Fraternal Order of Police v. United States of America, had been the only favorable decision for police officers who faced loss of employment because of their domestic violence convictions. Last year, the Court of Appeals for the Eleventh Circuit rejected a similar attack on the law. A few weeks ago, a federal District Court dismissed three separate cases brought by Denver officers challenging the constitutionality of the Lautenberg/Barr Amendment. The Court of Appeals for the

Nearly 2,000 officers will be elevated to the

Safir has reportedly broken off talks with the PBA after last month's unprecedented no-confidence vote by delegates of the 28,000-member union. Meanwhile, the PBA is embroiled in a hotly contested race for union president. At least one candidate has accused Safir of meddling in the election. 

In recent years, the NYPD has considered various plans to reward productive officers. The commissioner's plan not only succeeds in providing selected officers a pay raise but also moves them out of the PBA and into the detectives' union.

Matthew W. Christensen claims he was rejected by the Los Angeles Police Department (LAPD) solely because he wears a prosthesis on his left leg as a result of a below the knee amputation. "I went down to apply for the police department thinking that all I had to do was take what they threw at me, and I would have a job," Christensen said. 

Christensen claims he passed all of the LAPD entrance requirements, including scoring in the 95th percentile on the oral examination. At the last step of the process, the medical examination,

Christensen is asking the court to enjoin the LAPD from disqualifying physically able candidates such as him, order him hired, and place him in the next available police academy class. Attorneys affiliated with the Disability Rights Education and Defense Fund in Berkeley, California, are representing him.

Cases of Interest

Supreme Court update

Seeking review recently is Faria v. City of Palm Beach, Florida, No. 98-1497, wherein a lower court found that the Americans with Disabilities Act was not violated when the city denied employment as a police officer to an individual who was an insulin-dependent diabetic. The case focuses upon whether the burden of proof in establishing whether a job applicant poses a direct threat to the safety of others should be allocated to the aggrieved plaintiff or the defendant employer. 

Also seeking consideration is Wagner v. City of West Palm Beach, Florida, No. 98-1535, raising the question of whether a public employee's complaints to his employer about workplace safety are protected by the First Amendment. Lower courts denied protection to a police officer who complained that the SWAT team practiced in a building contaminated by asbestos. Officer was subsequently dismissed from the force. He sued contending that his termination was in retaliation for his workplace safety complaint. Lower courts refused relief on the grounds that the complaints did not touch upon a matter of public concern, a requirement for a public employee to enjoy First Amendment privilege.

HELD: The county argues it did not violate state labor law by refusing to bargain because the merit board has the sole authority to void illegal certifications and appointments and, therefore, decertification is not a mandatory subject of bargaining. The union contends, however, that decertification affects the terms and conditions of employment, which is a mandatory subject of bargaining. Illinois labor law requires a public employer to bargain over wage, hours, and other terms and conditions of employment. However, the law does not require collective bargaining over matters of inherent managerial policy, including

HELD: The due process clause of the Constitution provides that the right to life, liberty, and property cannot be deprived except pursuant to constitutionally adequate procedures. The due process claim in the context of civil service employment depends upon an employee having a property right in continued comparable employment. It is undisputed that Cannon was serving with permanent status in the classified civil service and, therefore, held a property right. The Supreme Court has ruled that the basic procedural due process requirements are notice and an opportunity to respond. Before an employee with permanent status may be discharged, he is entitled to oral or written notice of the charges against him, an explanation of his employer's evidence, and an opportunity to present his side of the story. Due process requires that, at a minimum, some type of pre-termination hearing be held before a tenured employee is discharged. The city's procedures in this case do not fulfill the Supreme Court requirements. Although Cannon received both oral and written notice that he was the subject of an administrative investigation of the charges prior to being suspended with pay, at no point did the city explain to him the evidence supporting the charge of insubordination nor was he offered a meaningful pre-termination hearing. The so-called exit interview meeting came only after the mayor had already decided to terminate Cannon.

HELD: Under Massachusetts law, a collective bargaining agreement may not require a result that conflicts with the mandate of another state statute, except for certain specified exceptions. The civil service law is not one of those specified exceptions. When the civil service commission issued an order concerning seniority, that order affected only those matters within the scope of the civil service statute. Shift and vacation assignments relate to hours and conditions of employment and, hence, are mandatory subjects of collective bargaining. They are not covered by state civil service law. The parties to a collective bargaining agreement are free to agree to any principle they wish to govern assignments of shifts and vacations. Nothing in state law requires that assignments be governed by systems of particular preferences or that they be allocated by seniority. For example, the parties might agree to a rotation, or a lottery, or even alphabetical order for such assignments. If the parties do agree, as they did here, on seniority as the governing principle, nothing in the civil service law prevented them from agreeing to compute seniority as they chose: whether by age, or by length of service on the force, or by length of service in rank. The point is that nothing in the law or the civil service commission's order constrained this choice. The parties were free to agree as they wished under the collective bargaining agreement. The bargaining contract provided for shift selection based on seniority by appointment within the rank. An arbitrator determined that that meant, in Bielawski's case, the actual date of his promotion, 1995. Nothing is better settled in Massachusetts law, however, than that an arbitrator's interpretation of a contract will not be overturned by a court unless

HELD: The common law offense of misconduct in office requires corrupt behavior by an officer in the exercise of his duties of office. The question presented in this case is whether the deputy sheriffs are "public officers" subject to the old common law prescription or merely "public employees." To determine whether a position constitutes a public office, courts have examined five elements. First, the office must be created by the state constitution, the legislature, or by a municipality through authority conferred by the legislature. Second, it must possess a delegation of a portion of the sovereign power of the government to be exercised for the benefit of the public. Third, the powers conferred must be defined directly or implicitly through the legislative authority. Fourth, the duties must be performed independently and without control of a superior power other than the law, unless they are those of an inferior subordinate office created and placed under the general control of a superior officer. And fifth, the position must

HELD: The city first argues that requiring it to reimburse an employee for criminal defense costs would violate public policy, as established in prior case law. Prior cases prohibit the enforcement of agreements that indemnify people against the consequences of their intentional misconduct. The city, however, misreads the case law. It is the consequences of intentional misconduct that are barred from indemnity, not the defense of that conduct. The reason for the distinction is directly tied to the purpose of the public policy, which is to prevent a person who intentionally injures another from avoiding the punishment that flows from that conduct. Providing a defense to such person, who may or may not be liable, does not permit the person to avoid the punishment that flows from his conduct. Thus, the association's proposal does not violate public policy. In the alternative, the city argues that the provision is not a mandatory subject of bargaining. Under Oregon law, only "employment relations" are mandatory subjects of bargaining. Employment relations include but are not limited to matters concerning direct or indirect monetary benefits, hours, vacations, sick leave, grievance procedures and other conditions of employment. In 1995, the legislature expanded upon the definition of "employment relations." The legislature listed a variety of matters, such as staffing levels and scheduling of services, which were expressly excluded from the definition of "employment relations." The legislature further provided that "employment relations" would not include subjects which the ERB determined to have a greater impact on management's prerogative than on employee relations, hours, or terms and conditions of employment. The city argues a somewhat convoluted interpretation of these statutory amendments. The city's position, however, would produce an interpretation of the law that would be inconsistent with normal statutory interpretation. Rather, the appropriate view of the statutory amendments is that there are a list of items

HELD: A libel suit by a public official against a newspaper publisher implicates the constitutional guarantees of freedom of speech and press. In such actions, the traditional burdens of proof are altered by the constitutional protections afforded the press. Public officials must establish that the defamatory statement was false and that the defamatory statement was made with constitutional actual malice. Constitutional actual malice means with knowledge of its falsity or reckless disregard for its truth or falsity. The statement's falsity must be proved by preponderance of the evidence. To be successful in a libel action, the first step is that the statement must be defamatory. The newspaper argues that the headline "Are The Drug Dealers Paying?" is a pure question which cannot fairly or reasonably be considered an accusation of bribery. The court, however, disagrees with this argument. A defamatory statement is one which tends to impeach the individual's reputation. Defamation need not be direct because a mere insinuation, if false and malicious, is actionable if the meaning is plain. Defamatory meaning may be conveyed by means of a question. The question, however, must be reasonably read as an assertion of a false fact.