July Newsletter (Issue 07-2014)

Testifying Under Oath Is Protected Speech If It Relates To A  Public Concern.


In Lane v. Franks, the Alabama Community College (CACC) hired petitioner Edward Lane to be the Director of Community Intensive Training for Youth (CITY), a statewide program for underprivileged youth.  CACC hired Lane on a probationary basis. In his capacity as Director, Lane was responsible for overseeing the CITY’s day-to-day operations, hiring and firing employees, and making decisions with respect to the program’s finances.

The CITY faced significant financial difficulties prompting Lane to conduct a comprehensive audit of the program’s expenses.  The audit revealed that Suzanne Schmitz, an Alabama State Representative on the CITY’s payroll, had not been reporting to her CITY office.  After unfruitful discussions with Schmitz, Lane shared his finding with CACC’s president and its attorney.  They warned Lane that firing Schmitz could have negative repercussions for him and CACC.

Lane nonetheless contacted Schmitz again and instructed her to show up to the Huntsville office to serve as a counselor.  Schmitz refused and she responded that she wished to “… continue to serve the CITY program in the same manner as [she had] in the past.”  Lane fired her shortly after that conversation.  Schmitz told another CITY employee, Charles Foley, that she intended to “get [Lane] back” for firing her.  She also said that if Lane ever requested money from the state legislature for the program, she would tell him, “[y]ou’re fired.”

Schmitz’ termination drew the attention of many, including agents of the Federal Bureau of Investigation, which initiated an investigation into Schmitz’ employment with CITY.  In November 2006, Lane testified before a federal grand jury about his reasons for firing Schmitz.  In January 2008, the grand jury indicted Schmitz on four counts of mail fraud and four counts of theft concerning a program receiving federal funds.  The indictment alleged that Schmitz had collected $177,251.82 in federal funds even though she performed “virtually no services” and “generated virtually no work product,” and “rarely even appeared for work at the CITY Program offices.”  It was further alleged that Schmitz had submitted false statements concerning the hours she worked and the nature of the services she performed.

At Schmitz’ trial, Lane testified, under subpoena, regarding the events that led to his terminating Schmitz.  The jury failed to reach a verdict.  After the first trial federal prosecutors retried Schmitz, and Lane testified once again.  This time, the jury convicted Schmitz on three counts of mail fraud and four counts of theft concerning a program receiving federal funds.  The District Court sentenced her to 30 months in prison and ordered her to pay $177,251.82 in restitution and forfeiture.

Meanwhile, CITY continued to experience considerable budget shortfalls.  In November 2008, Lane began reporting to respondent Steve Franks, who had become president of CACC in January 2008.  Lane recommended that Franks consider layoffs to address the financial difficulties.  In January 2009, Franks decided to terminate 29 probationary CITY employees, including Lane.  Shortly thereafter Franks rescinded all but 2 of the 29 terminations, Lane and one other employee, because of an “ambiguity in [those other employees’] probationary service.  Franks claimed that he “did not rescind Lane’s termination because he believed that Lane was in a fundamentally different category than the other employees because he was the director of the entire CITY program and not simply an employee.”

Lane sued Franks under § 1983, alleging that Franks had violated the First Amendment by firing him in retaliation for his testimony against Schmitz.  Lane asked for damages and reinstatement.  The District Court granted Franks motion for summary judgment, which was appealed and affirmed by the 11th Circuit based upon the holding in Garcetti v. Ceballo.  The United States Supreme Court granted certiorari and reversed holding that the First Amendment protects a public employee, who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities.

The Court starts its analysis with Pickering, which involved a letter by a schoolteacher to a newspaper concerning a tax increase, which the Court concluded was of public concern and protected speech.  The opinion in Pickering recognized that speech by public employees on matters related to their work that are of public concern have a special status because public employees gain knowledge of matters of public concern through their employment and are members of the community who are most likely to have informed opinions on how funds should be allocated to the operation of school.

In Garcetti, a reviewing prosecutor wrote a disposition memorandum in which recommended dismissal of a case based upon purported governmental misconduct.  The police did not like the memorandum and over an extended time period there was a lot of give and take.  Charges were ultimately filed and the reviewing prosecutor was called as a witness by the defense testifying about his recommendation leading to a non-conviction.  The controlling factor in Ceballos’ was that his expressions were made pursuant to his duties as a calendar deputy fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case.

In Lane v. Franks the case decided in June of 2014 the public employee speech is evident because it was in the context of a public corruption scandal.  The Court concluded that it was the very kind to speech necessary to prosecute because public employees learn information through their employment.  Not protecting such speech places public employees who witness corruption in an impossible situation, torn between the obligation to testify truthfully, and the desire to desire to avoid retaliation in order to keep their job.  Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S. Ct. 1951, 1959-60 (U.S., 2006).  Lane v. Franks, 134 S. Ct. 2369, 2372 (2014).

Comment Howard: Trying to figure out the free-speech rights of City employees is challenging particularly when the right of free-speech seems almost unlimited.  The recent decision by the United States Supreme Court in Lane v. Franks, was supposed to help in drawing the line but in my mind it looks like a matter of degree.  In Garcetti v. Ceballos, the controlling factor in Ceballos’ case was “that his expressions were made pursuant to his duties as a calendar deputy.”  In Lane v. Franks, the concurring opinion notes that the employee was giving testimony “as a citizen on a matter of public concern.” Sometimes this will be hard to tell and a matter of degree, like a full-scale public scandal (Lane v. Franks) vs. a small bump in the road (testimony showing police misconduct sufficient to get case thrown out).  Both cases seem factually similar in that it involved truthful testimony under oath.  Does anyone think that Frank’s job did not include ferreting out fraud and taking action to correct the problem?

Cannot Search Cell Phone Without A Warrant.

By now we all know that the United States Supreme Court held in Riley v. California, 2014 WL 2864483 (U. S. Cal.), 3 (U. S. Cal., 2014) that the police cannot search cell phones without a warrant.  Despite the straightforwardness of this very important decision the case merits further analysis as we try to assist law enforcement agencies react to this decision.


For those like myself who dabble at times in search and seizure law the courts three-page analysis of the so called “trilogy of cases” governing search and seizure law is a classic and a great jumping off point.  Against this backdrop, the court measures the application of these cases in the context of cell phone technology, particularly smart phones. The court strikes the balance in favor of the right privacy even though it recognizes that its rule, requiring a search warrant to examine the contents of a cell phone, will adversely affect law-enforcement.  This point is illustrated by the facts, which clearly show that the evidence from defendants cell phones that were seized and searched without a warrant lead to convictions of very bad actors with a long criminal history.

So what protocols do police officers need to follow when they arrest someone who has a cell phone? Of course, almost everyone they arrest will probably have a cell phone, which makes it important that the advice offered by the Court with respect to what police officers may do when they arrest a person with a cell phone get to the officers in the field as soon as possible.

First, the officer can physically examine the cell phone to ensure that it cannot be used as a weapon such as a razor blade hidden between the phones. Second, the officer can secure the phone by turning it off, removing the battery, or placing it in Faraday bag to prevent destruction of data by remote wiping of the data from the phone or by so-called “geofencing” (deletion of data when you leave a certain area). If the officers are concerned about encryption or other potential problems, they can leave the cell phone on and place it in an enclosure that isolates the phone from radio waves such as the so-called “Faraday bag.” Apparently these sandwich like bags are made of aluminum foil, are cheap, lightweight and easy to use.

If the police are truly confronted with a “Now or Never situation” that suggests that the defendants phone will be the target in a minute of a remote wipe they may be able to rely on exigent circumstances to search the phone immediately.  If the officer sees a phone and it is unlocked, the officer can disable the phones automatic lock feature in order to protect the phone from locking and encrypting data.  In other words, officers can take reasonable steps to secure a phone at the scene to preserve evidence while they await a warrant.

The court did recognize that a search incident to arrest based on the “exigencies of the situation” would justify a search of the data on the cell phone when the police are pursuing a fleeing suspect and to assist persons who are injured or who are threatened with imminent injury.  I assume that the Boston Marathon bombing or a missing child under an “Amber Alert” might qualify as exigent circumstance exceptions.  Still there is no way of knowing until a body of case law is developed. From what I can see the Court has broadly expanded qualified immunity protecting police officers from most civil rights lawsuits.

The Court’s opinion rest in large part upon the realization that they modern-day cell phone is a computer allowing the person possessing the phone to carry huge amounts of data, photographs, contacts, telephone calls, E-mails, and contacts or so to speak literally a persons life story.  As a consequence the court concluded that searching a cell phone is more intrusive than searching a person’s house because there is potentially more information on the cell phone than what you would find in your house.  Riley v. California, 134 S. Ct. 2473 (U.S. Cal., 2014)

Comment Howard: As the court moves down the road to address other privacy questions this case will be clearly be the starting point.  Not only will police officers have to adapt but also you can expect criminals to realize they can obtain a significant advantage by using smart phones with encryption, remote wiping, “geofencing” and other devices to prevent the police from obtaining the data on the phone.  I suspect the criminals will adapt a lot quicker than government.  Remember this was a 9 to 0 opinion and it tells us a lot about what the Court thinks about the right of privacy.  You can expect the court to come back to this case as we work through privacy/technology issues.


Thirty-five Foot Buffer Zone Unconstitutional.

In McCullen v. Coakley, the United States Supreme Court struck down a Massachusetts law that made it a crime to knowingly stand on a ”public way or sidewalk” within 35 feet of an entrance or driveway of a reproductive health care facility or within a rectangle created by extending the outside boundaries of any entrance, exit or driveway of a reproductive health care facility in straight lines to the point where such lines intersect the sideline of the street in front of such entrance, exit or driveway. (The “Act”)

One of the key issues in this case was whether or not the Act regulated speech based on its content since it was limited to only abortion clinics, and the exemption of clinic employees and agents by allowing them to escort patients into the clinic favored one viewpoint over another thereby making the Act subject to strict scrutiny under the First Amendment.  Under the Act it was not necessary to examine the content of the message to determine whether or not a violation of the ordinance had occurred, therefore Chief Justice Roberts, the author of the opinion, joined by four liberal Justices concluded that the Act was not based on content or viewpoint.  Consequently it was not necessary to analyze the content of the message under the strict scrutiny standard.

The record in this case showed there were no similar recurring problems with other healthcare facilities or other buildings in the state that host activities that might occasion protest comment.  “In light of the limited nature of the problem, it was reasonable for the Massachusetts Legislature to enact a limited solution.  When selecting among various options for combating a particular problem, legislatures should be encouraged to choose the one that restricts less speech, not more.”

The court notes that the Massachusetts law was unique in that it was the only such law in the United States that created fixed buffers around abortion clinics and while that in and of itself did not make the law unconstitutional there were other ways to achieve the same objective without the overreaching limitations on free speech in the Act.  The Court applied the intermediate scrutiny concluding the Act was invalid because the buffer zone regulated more speech than necessary to achieve the State’s asserted interest. Chief Justice Roberts concluded there were other less intrusive ways to achieve the same objective.  The Court then goes on to suggest a number of laws that have been held to be constitutional such as criminalizing harassment, intimidation, and blocking of access to entrances and exits as well as injunctions against organizations and/or persons who violate the law.

The majority opinion did not address an earlier Supreme Court opinion upholding an 8-foot floating buffer zone while the dissent noted that it was hard to square the Courts earlier decision upholding the 8-foot floating buffer zone with the decision in this case.  Of interest was that Massachusetts had abandoned the floating 8-foot buffer zone because it was unenforceable according to law enforcement officials.  McCullen v. Coakley, 134 S. Ct. 2518 (U. S., 2014)

Comment Howard: This case raises more questions than it answers.   One thing for sure is the abortion wars will continue with local government officials caught in the middle trying to keep order while protecting the constitutional rights of those who are constitutionally entitled to an abortion from those who are exercising their constitutional right to argue against someone having an abortion. If you could overcome the difficulties that law enforcement had with the 8-foot floating buffer zone with some sort of technologically fix that works there is already a Supreme Court precedent upholding an 8 foot floating buffer law.

What is of real interest to me and may be particularly important to local governmental is that the majority reached a conclusion that the problem was unique to a particular situation and as a consequence laws might be able to be drafted narrowly to address a problem based upon a record supporting the legislation. I would hope this would allow local government to draft narrowly based laws to solve problems based on facts with specific findings thereby avoiding other free speech traps like issues of over inclusive or under inclusive. For example, a narrowly drawn law that finds it is unsafe to have anyone standing on certain sidewalks with a sign or soliciting as traffic streams into a city over a bridge that is properly signed seems to me reasonable and not being able to prohibit on a case by case basis is an injustice to the life and safety of the traveling public. If you have a buffer zone law on the books you may want to review the ordinance in light of this case and the comments recently provided by IMLA. Was Chief Justice Roberts signaling a new and more nuanced approach to the maddening problems local government officials have in drafting laws or is he just an ivory tower thinker that has no concept of the difficulties local government officials face?


Information That Did Not Cite The Section Of The Ordinance Upheld.

Vernon Casimere (“Casimere”), Program Manager of St. Louis County’s Neighborhood Preservation Program, conducted a preoccupancy inspection on the Elta Rose Apartment Complex in North St. Louis County.  While performing the inspection, Casimere met Heiman, who was working on the property grounds.  Casimere found numerous Code violations as a result of the inspection, and on at least ten occasions thereafter, Casimere spoke with Heiman about the violations and what repairs and improvements were needed to bring the property in compliance with the Code.  Heiman told Casimere that he would hire a crew to complete the necessary repairs, and at one point also provided Casimere a work scope that laid out Heiman’s plans for completing the repairs.  Throughout Casimere’s communications Heiman never referred Casimere to a different individual to discuss the violations and necessary repairs, nor did he indicate that he lacked authority to approve repairs to the property.

St. Louis County filed an information charging Heiman with numerous violations of the Code.  The charging documents set forth the name of the defendant, the date of the violation, the address of the building in violation, and a short description of each violation with reference to an attached numbered photograph depicting the violation.  The charging documents did not include citations to the specific section numbers of the Code allegedly violated by Heiman.

Heiman then filed a motion to dismiss arguing that the charging documents were facially insufficient.  Heiman asserted that property ownership is an essential element of the charged offenses, and the charging documents failed to allege any facts showing that Heiman was the property owner of the Elta Rose Apartment Complex.  As a result, Heiman alleged the charging documents were insufficient to charge him with the Code violations.

At a bench trial St. Louis County offered into evidence the following sections of the Code that Heiman was charged with violating: 302.1, 304.6, 304.9, 304.10, 304.13, 304.14 and 604.3.  Heiman objected to the admission of the sections on the ground that the sections were not cited in the charging documents.  The municipal court overruled Heiman’s objection and admitted the Code sections into evidence.

The municipal court then entered its order and judgment overruling Heiman’s motion to dismiss and finding him guilty of the Code violations.  Heiman was ordered to pay fines totaling $4,525.00 and was placed on probation for 2 years.  Heiman appealed to the Eastern District.

On appeal Heiman argued that the trial court erred in overruling his motion to dismiss because the charging documents did not identify, which sections of the Code Heiman allegedly violated, and therefore were facially insufficient.  Second, Heiman argued that the municipal court’s judgment is against the weight of the evidence in that St. Louis County failed to prove that Heiman is the owner of the Elta Rose Apartment Complex.

Rule 37.35 (a)(4) states that information must ”cite the chapter and section of the ordinance alleged to have been violated…” Although the language of Rule 37.35 is mandatory, Rule 37.41 provides that “[a]n information shall not be invalid, nor shall the trial, judgment, or other proceedings on the information be stayed, because of any defect that does not prejudice the substantial rights of the defendant” because of any defect in the information.  Failing to cite the sections of the code that were violated did not prejudice Heiman because the charging documents described the alleged violations, and included pictures of the violations thereby giving Heiman notice.

The Code besides making the owner and its agents liable also provides that anyone “anyone having control of the property is liable.  Based on the facts that Heiman met 10 times with the building code official, presented plans to correct for violations and never contended that he did not have authority to correct the Code violations the Eastern District upholds the trial court’s decision.  St. Louis County v. Heiman, 2014 WL 2860624 (Mo. App. E.D. 2014)

Comment Howard: While you never want your case to be in this position the decision is very useful for digging yourself out of a self made hole.


Section 302.312.1 RSMo. Makes Records Deposited With DOR Director That Are Properly Certified Admissible Without Further Proof, Negating Hearsay And Best Evidence Rule.

On April 14, 2012, Erskine was charged with careless and imprudent driving and operating a motor vehicle while in an intoxicated condition by Officer Brian D. Moore (“Officer Moore”).  Based upon the facts reported in Officer Moore’s report, DOR administratively suspended the driving privileges of the Erskine.  On August 27, 2012, Erskine filed a “Petition for Trial De Novo From Administrative Decision” pursuant to sections 302.535.1 and 302.311 in the Circuit Court of Pulaski County.

police-cars-2 On the day of trial, counsel for Erskine filed a motion requesting the trial court strike DOR’s “Exhibit A and any evidence stemming from the observations, testimony, notes or recollections of former, Police Officer Brian Moore.”  In support, Erskine’s motion stated, in part: “5. Hearsay from witnesses who refuse to testify should be stricken.  6. Allowing the admission of the alcohol influence report, narrative or any other statement or observation by former officer Brian Moore, after [Erskine] tried to subpoena the same, would violate [Erskine]’s due process right under the Missouri and federal constitutions.  7. Admitting the police report, narrative, alcohol influence report, and Datamaster printout ticket in the absence of former Waynesville Officer Brian Moore given that Moore’s unavailability precludes [Erskine] from cross examining Moore.”

The trial court sustained the motion to strike Exhibit A and DOR appealed to the Southern District, which reversed and remained for further proceedings based upon section 302.31 2.1, which provided the copies of all papers, documents, and records lawfully deposited in the offices of the department of revenue certified by the appropriate custodian or the Director shall be admissible as evidence in all courts of the state and in all administrative proceedings.  This section was intended by the legislature to eliminate the need for testimony to identify the records and provide foundation as well as to eliminate the best evidence and hearsay challenges.  Reversed and remanded for further proceedings.  Erskine v. Director of Revenue, 428 S.W.3d 789, 790 (Mo. App. S. D., 2014)


Liability For Ice And Snow That Is A General Condition.

Periodically questions are asked on the MMAA list-serve about liability with respect to ice and snow on public property.  Hill v. Barry County provides a very short and succinct statement of the law on this subject.


In this case Plaintiff slipped on ice in a parking lot, fell, broke a leg, and sued.  As an affirmative defense, Defendant alleged that any ice or snow on the parking lot “accumulated naturally and was a condition general to the community at the time of the incident alleged in the Petition, by reason of which Plaintiff is not entitled to recover.”  Eventually, Defendant sought and obtained summary judgment on the same basis, which was appealed to the Southern District.

Under Missouri law, there is no duty to remove snow or ice that accumulates naturally and is a condition general to the community.  A general condition creates a natural hazard to everyone who ventures out at such time.  No one brings about a general condition and no one’s efforts can appreciably lessen the danger present.

The case also notes several Missouri cases, which find a lack of a “general condition” providing a basis for comparison.  Whether or not there is a general condition is a question of fact for a jury to decide, which resulted in the case being reversed and remanded for further proceedings.  Hill v. Barry County, 2014 WL 2866783 (Mo. App. S.D., 2014)



One thought on “July Newsletter (Issue 07-2014)

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