The Village of Hempstead, New York has a sick leave confinement policy that requires police officers using sick leave to be confined to their residence for the majority of time while on leave. Dawn Borum, a police officer with the Village, filed a state court lawsuit contending that the sick leave confinement policy unconstitutionally deprived her of her right to leave home to attend religious services. In the lawsuit, Borum also alleged that the policy violated her right to travel, her right to privacy, and her right of free association. Perhaps most sweepingly, Borum alleged that the policy deprived officers of their right to freedom from “bodily restraint to compulsion and freedom to treat their injuries, freedom to participate in union activities, freedom to walk, stroll or loaf, as well as equal protection under the laws.”

A state court judge ruled that Borum’s constitutional challenges were “moot” because the Village had adopted a newly-instituted sick leave policy which clearly passed constitutional muster. In passing, however, the state court judge made the observation that even the old policy would not have violated any of Borum’s constitutional rights.

Borum then filed a federal court lawsuit raising the same constitutional challenges. The Village moved to dismiss the lawsuit on the grounds of “collateral estoppel,” a legal principle which bars re-litigation of the same claims.

A federal district court agreed with the Village and dismissed Borum’s lawsuit. The Court reasoned that “as a party to the state court proceeding, Borum had a full and fair opportunity to litigate those issues in the state court. The state court based its decision entirely on constitutional grounds. That is evident from the text of the opinion as well as the citation of cases therein. In view of the identity of the issues raised, and the necessity of the constitutional ruling to the state court decision, the Court holds that collateral estoppel bars Borum from re-litigating the claim that the leave policy violates the Constitution.”

Borum v. Village of Hempstead, 2008 WL 5377948 (E.D.N.Y. 2008).

This article appears in the February 2009 issue