ODAM Law

Fabiano benefits claim in federal court

11th May 2010

Fabiano benefits claim in federal court

Date: 05/11/2010

BY JOE POTENTE

KENOSHA NEWS

An appeals board in Washington, D.C., will decide whether the survivors of the late Kenosha County Sheriff’s Deputy Frank Fabiano Jr. are eligible to receive federal worker’s compensation benefits.

Kenosha attorney Gino Alia argued the family’s case in front of a three-judge panel in Washington last week.

At issue is whether Fabiano was enforcing federal law when he was shot and killed during what began as a traffic stop in Somers on May 16, 2007.

If the appeals board finds he was, Fabiano’s family will be entitled to benefits under the local law enforcement provision of the Federal Employees’ Compensation Act, Alia said Monday.

Alia characterized the situation as an uphill battle worth fighting for Fabiano’s widow, Amy, and their daughter, Angelina.

Alia argues the handgun Ezequiel Lopez-Quintero used to shoot Fabiano constituted a federal crime, as it was purchased illegally in Illinois and carried across state lines.

Lopez-Quintero was convicted for first-degree homicide with a dangerous weapon in 2008 and is now serving life in prison without the possibility of parole.

Sheriff’s Capt. Paul Falduto said he applied for the federal benefits on behalf of Fabiano’s family shortly after the deputy was killed.

The original argument for federal intervention centered around Lopez-Quintero’s illegal immigration status, but the government denied the request on the grounds that Fabiano was not aware of Lopez-Quintero’s status as he carried out the traffic stop.

Alia then resubmitted the claim with the handgun argument, noting that the Federal Employees’ Compensation Act manual states benefit coverage for local law enforcement is to be provided when the possession of a weapon is a federal violation and is “an integral part of the stimulus to which the local officer was responding.”

While Fabiano began pursuing Lopez-Quintero for a traffic violation, Alia said the gun became the stimulus for Fabiano’s actions — including the firing of four shots from the deputy’s firearm — once Lopez-Quintero displayed it.

The U.S. Department of Labor denied this application last year, still arguing Fabiano was on a routine traffic stop. This set up the appeal Alia argued last week.

Alia said a decision from the appeals panel is expected in the next 90 to 120 days.

While he said the Fabiano family received death benefits through the state, Alia said the federal compensation is “generally considered more lucrative,” and could take the place of state money that has been awarded.

Falduto said the federal compensation would be based on a small percentage of Fabiano’s salary, the bulk of which would benefit the late deputy’s daughter.

“It wasn’t like it was a big windfall for them, but it was something we thought Angelina and Amy deserved because of this situation with Frank,” Falduto said.

Falduto said the Sheriff’s Department is no longer leading the charge for the benefits, but is assisting in providing any needed information.

“It may be three years later, (but) we still don’t forget,” Falduto said. “They’re still our family; he’s still our fallen brother. And we don’t forget our fallen brothers.”