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Employees assume the risks inherent in performing the duties of their position

Employees assume the risks inherent in performing the duties of their position
Witkowski v Milwaukee County, USCA 7th Circuit, 480. F.3d 511

Laron Ball was on trial murder. Ball had threatened mayhem if convicted, so the court took extra precautions. When the jury found Ball guilty, Ball seized a gun from deputy sheriff Michael J.Witkowski and shot him in the leg. Before Ball could do additional harm to those in the courtroom, he was shot and killed by a detective.

Witkowski sued, contending that the failure of two deputy sheriffs and their superiors to make certain that Ball was properly guarded violated his rights under the due process clause of the Fourteenth Amendment because they reduced the security precautions ordered by the court with ?deliberate indifference? to the risk that Ball posed.*

The Circuit Court of Appeals, however, rejected Witkowski?s argument, sustaining the district court?s ruling dismissing his lawsuit. The Court noted that Witkowski ?was paid to protect judges and the public from the likes of Ball.? In the opinion of the court, to the extent that his employment exposed him to a personal risk, ?he took it willingly in exchange for pay and fringe benefits.? The Constitution, said the court, ?does not entitle him to more medical benefits and insurance than what he agreed to accept.? In the words of the court:

?Neither the text nor the history of the Due Process Clause supports [a] claim that the governmental employer?s duty to provide its employees with a safe working environment is a substantive component of the Due Process Clause,? [quoting from Collins v. Harker Heights, 503 U.S. 115, 126]. The bill of rights protects people from the government but does not oblige the government to furnish protection against private violence. In this sense, the Constitution is a charter of negative liberties.

However, said the Circuit Court, ?This is not to say that public employees are beyond the Constitution?s protection.? As examples, the court said that if an employee complains that a public employer exposed him or her to extra risks because he or she had campaigned against a political leader or because of his or her race or color, it would view the employee as having alleged a legally sufficient claim under the First Amendment or the equal protection clause of the Fourteenth Amendment.

* The decision states that Gunn and Halstead not only failed to attach the stunbelt around Ball as instructed by the trial court, ?they were outside the courtroom when the jury returned its verdict, an especially dangerous moment given the nature of Ball?s threats.?

The decision is posted on the Internet at:
http://openjurist.org/480/f3d/511/witkowski-v-milwaukee-county

Full post as published by New York Public Personnel Law on September 16, 2009 (boomark / email).