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U.S. SUPREME COURT UPDATE
October 13, 1999
We want to bring to your attention United States
Supreme Court action in three separate cases.
The Supreme Court declined to hear an appeal by
the Fraternal Order of Police in its Washington,
DC, lawsuit challenging the constitutionality of
the Barr provision in the Lautenberg Amendment.
This provision made law enforcement officers
subject to the firearms disabilities of the Gun
Control Act for misdemeanor crimes of domestic
violence. As you may recall, in 1998 the U.S.
Court of Appeals for the D.C. Circuit first held
that the special domestic-violence exception for
the public interest provision, which usually
exempts law enforcement officers and the military
from the Gun Control Act, was unconstitutional.
Thereafter, after a rehearing and the entreaties
of the U.S. Government, the same panel of judges
reversed itself and ruled the provision
constitutional. The FOP appealed, and the Supreme
Court has now rejected that appeal. The D.C.
Circuit's decision will stand. The Supreme
Court's refusal is not surprising, since the
courts of appeals for the 11th and 7th Circuits
have also ruled against police officers in other
cases.
As you may recall, NAPO and three Denver police
officers filed a lawsuit in federal district
court, challenging the Barr provision, but the
cases were dismissed on the ground that the
officers had not yet exhausted their
administrative remedies. Those administrative
appeals are pending, and the federal lawsuits may
be re-filed if the officers lose their
administrative appeals to the City and County of
Denver.
On Tuesday, October 11th, the U.S. Supreme Court
agreed to review two other cases of importance to
law enforcement officers. First, it accepted for
review an important case from Texas. The Court
will decide whether law enforcement officers who
receive compensatory time in lieu of overtime pay
may be forced to use this time at the employer's
convenience and direction. In this case, 120
sheriff's deputies assert that they, not their
government employer, have the right to control
when such time-off credits are used. In Harris
County (Houston), sheriff's employees nearing the
maximum amount of time in accumulated comp-time
hours (480) are ordered to take time off whenever
it serves the personnel needs of the county. The
trial judge ruled for the deputies, saying
compensatory time off must be used "on the
worker's terms," except when doing so would
disrupt employer's operations; to do otherwise
violates the Fair Labor Standards Act. The 5th
Circuit Court of Appeals reversed and ruled for
the county, ignoring a Labor Department
regulation and another appellate case. NAPO will
seek permission to file an amicus curiae or
"friend-of-the-court" brief. If you
have any anecdotes or experiences on the
comp-time issue, that we might include in our
brief, please let us know.
In a second case, the Supreme Court will hear a
defendant's appeal in a Texas drug case, to
decide whether police are conducting a search and
must therefore have probable cause, when they
feel someone's luggage to determine if the
luggage contains drugs. In Bond v. United States,
the defendant was a passenger on a bus, traveling
from California to Arkansas, when it was stopped
at an immigration checkpoint in Texas. A Border
Patrol agent checked passengers' immigration
status, then walked through the bus feeling their
luggage, including bags in overhead bins and
under passengers' seats. The agent squeezed a
canvas bag in the bin over Bond's seat, and the
shape of a "brick-like" object inside
the bag led him to suspect that it contained
drugs. Bond gave the agent consent to search the
bag. Inside the bag was the object, which turned
out to be methamphetamine. Bond contended that
the squeezing of his bag amounted to a search and
thus violated the 4th Amendment prohibition
against unreasonable searches. The trial judge
and the 5th Circuit Court of Appeals ruled
against him. The appellate court found that Bond
gave up any reasonable expectation of privacy in
his bag because he "exposed it to the
public" by placing it in the luggage bin.
Because of a conflicting case elsewhere, the
Supreme Court took this case. We will also seek
permission to file an amicus brief in this case.
We will keep you updated.
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