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2014 MMAA Summer Seminar • July 18 – 20, 2014 • Tan-Tar-A Resort

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Qualified Immunity Defense Strengthened.

The United States Supreme Court in Plumhoff v. Rickard tried to bring clarity to the use of the qualified immunity defense in a civil rights case involving police officers that are accused of using excessive force in violation of the Fourth Amendment of the United States Constitution.

The facts in this case are right out of a movie scene where the officer stopped a driver of a vehicle for a minor motor vehicle equipment violation (missing headlight).  When asked for identification, the driver sped away leading to a high-speed chase where the driver swerves in and out of traffic at speeds of 100 mph passing some 24 cars while being pursued by five police cars.  After a series of maneuvers the officers are able to bring the vehicle to a stop at which time the driver again tried to escape by ramming one of the police cars while continuing his flight.  In order to stop the driver the police officers shot some 15 bullets into the car killing the driver and a passenger.

The minor child of the passenger filed a civil right’s lawsuit was against the officers.  The officers filed a motion for summary judgment based on qualified immunity.  The courts below denied the motion for summary judgment by the police officers and the case was appealed to the United States Supreme Court, which reversed the decision of the lower courts.  The court in a unanimous decision takes great effort to clarify the process for analyzing the qualified immunity defense in civil rights actions.

The framework for analyzing the qualified immunity defense starts with whether or not the constitutional right would have been violated on the facts alleged.  Until recently, only after deciding that question (whether or not the constitutional right would’ve been violated on the facts alleged) may the court go onto the question of whether or not the right was clearly established at the relevant time.  Having made this statement the court reaffirms earlier cases that make it clear that in certain situations it may make sense to start with the second question (is the right clearly established) because that approach may promote the involvement of constitutional precedent and is valuable with respect to questions that do not frequently arise in a qualified immunity defense. (In my mind this is a much simpler approach in certain cases because you can easily decide if the right was clearly established)

Having said all of that, in this case, the Supreme Court starts it’s analysis with respect to whether or not the officers actions violated the fourth amendment.  Based upon a careful balancing of the nature of the violation against the individuals Fourth Amendment Rights and the countervailing governmental interest at stake the court concludes that the facts showed that the actions of the driver posed a grave public safety risk; therefore, the officers were entitled to the defense of qualified immunity.

The court emphasized that the analysis has to be fact intensive and should not be based upon generalities.  The court stated that the police do not have to allow fleeing suspects to get away whenever the suspect drives so recklessly that they put other peoples lives in danger.  Police officers are justified in firing at a suspect in order to end a serious threat to public safety and they do not have to stop shooting until the threat has ended.

With respect to whether or not the rule is clearly established the court emphasizes that the constitutional question confronted by the actions of the official must be beyond debate and clearly established at the time of the challenged conduct, which was not the situation in this case.  Plumhoff v. Rickard, 134 S. Ct. 2012 (U.S., 2014)

Comment Howard: If you have a case involving a qualified immunity defense this is the case to start your analysis.  While it is hard to point to one single factor in this case as a divining rod it is clear that the court has made it exceedingly more difficult to win a case as a plaintiff when the qualified immunity defense has been asserted by police officers in Fourth Amendment excessive force cases.  The other takeaway in this case is that the factual justification for the police officers actions needs to be particularized (facts, facts and more facts).  Once you decide that the police officers have the right to pursue a person fleeing a scene and the right fire their firearms in order to protect the public due to the outrageous activity of the driver the Supreme Court makes it clear that the courts should not second-guess police officers decisions made in a split second. The tone of this case is one of great respect and recognition for the difficulties the police officers make in a split second when they are acting to protect the public.

 

Secret Service Agents Have Broad Discretion In Determining Where To Locate Demonstrators.

In another qualified immunity case the United States Supreme Court reversed a decision by the 9th Circuit Court denying Secret Service agents qualified immunity by holding that there was no case requiring the Secret Service to provide equal access to persons protesting actions of the President of the United States as the President’s supporters.  What is interesting about this case is that the court immediately moved to the analysis as to whether or not there was a constitutional right under the equal protection clause to provide protesters the same access to the President as his supporters.  Obviously the court is extremely deferential to the circumstances and importance of guarding the President of the United States. Nevertheless, the analysis provided by the court by simply moving to the question of whether or not such a right exist under the equal protection clause provides an easy way to get to the heart of the legal question.

“No decision of which we are aware, however, would alert Secret Service agents engaged in crowd control that they bear a First Amendment obligation to ensure that groups with different viewpoints are at comparable locations at all times.  Nor would the maintenance of equal access make sense in the situation the agents confronted.” Wood v. Moss, 134 S. Ct. 2056 (U.S., 2014)

Comment Howard. The comments concerning the analytical framework for deciding whether or not a police officer has qualified immunity in the Plumhoff v. Rickard, case was a set up for the approach taken in deciding Wood v. Moss where the court found that no constitutional right to be treated exactly the same as supporters of the President as claimed by the protesters.  The two cases decided by the Supreme Court unanimously on qualified immunity on the same day, reversing two Court of Appeals decisions is a very strong message that the Court is going to support difficult decisions made in a split second.  It may be that this case is one of a kind because the court was extremely deferential to the need to protect the safety of the President; Nevertheless, this case certainly stands for the proposition that there can be a difference between how proponents and opponents may be treated in the location of the exercise First Amendment rights since it is not always possible to treat everyone exactly the same.  In this case, the public safety of the president was the paramount concern.

 

Allowing Police Officer To Arrest A Person For Not Wearing A Seatbelt Did Not Conflict With State Law On Similar Subject.

The City of St. John (City) adopted an ordinance that required the driver and a front seat passenger in a passenger car to wear a properly adjusted and fastened safety belt at all times when the vehicle was operated on the street or highway in the City.  Brockus (Defendant) was stopped by a City police officer while driving his car for the sole reason that he was not wearing a seatbelt in violation of the § 375.030 (“Ordinance”).

As a result of the traffic stop, Defendant was subsequently charged with driving without a seatbelt, driving while his license was revoked, possession of marijuana, and possession of drug paraphernalia based upon a search of the vehicle and a check of the status of his driver’s license.  Defendant filed a motion to quash based on the invalidity of the ordinance because it conflicted with State law on the same subject matter, which prohibited stopping, inspecting or detaining any person to determine compliance with the statute requiring a driver and front seat passenger of a passenger car to wear a properly adjusted and fastened safety belt.  Defendant filed a motion to quash that was denied, which Defendant appealed to the Eastern District.

The Eastern District upheld the trial court’s decision.  The Defendant argued on appeal that the Ordinance conflicted with the state statute because it permitted specifically what the state statute prohibited by allowing the officer for the City to stop a vehicle to determine compliance with the ordinance requiring the wearing of a seatbelt.  The Eastern District held that the language in the state statute limits its application to “this subsection” citing other Missouri Supreme Court decisions in support of it’s interpretation that there was no conflict with the Ordinance.

“The unambiguous meaning of the phrase “with this subsection” does not allow this Court to apply the prohibition of primary enforcement beyond Section 307.178.  While the Legislature has the authority to prohibit municipalities from enforcing their seat belt laws on a primary basis, it has not exercised that authority within Section 307.178 or any other state statute.  Simply put, the limiting language of Section 307.178 has no application to traffic stops predicated on municipal ordinances.  See Strode, 724 S.W.2d at 247.  Accordingly, no conflict exists between City’s seatbelt ordinance and Section 307.178.”  City of St. John v. Brockus, 2014 WL 2109108 (Mo. App. E.D., 2014)

Comment Howard: This decision if it stands will be particularly useful if you can identify in the state statute language showing that it’s application is limited to the statute itself.   This would help avoid a more complicated analysis as to whether or not the statute conflicts with the city ordinance.  The question of whether or not a city ordinance conflicts with state law is one of the most common questions that arises in our local governmental law practice.  I think it would be great if someone would write a law review quality article on the subject.  It would be nice if I could just read someone else’s article and put my factual situation into the proper category.

Prompt Pay Act And Need To Define Terms For Payment.

Even though the Eastern District reversed and remanded for further proceedings a claim for failure to pay in accordance with the Prompt Pay Act (Act) in Systemaire, Inc. v. St. Charles County the decision by the Eastern District provides a good review of governmental obligations under the Act as well as some good house keeping lessons with respect to the need to precisely define terms for payment under the Act.

The Act promotes timely payment of contractors, subcontractors, and suppliers on contracts with public owners for public works construction projects.  It requires public owners and contractors to make prompt payments (generally monthly except for lump sums) and limits amounts withheld as retainage.  The public owner shall pay the retainage, less any offsets or deductions authorized in the contract or otherwise authorized by law, to the contractor after substantial completion of the contract work and acceptance by the public owner’s authorized contract representative. Such payment shall be made within thirty days after acceptance, and the invoice and all other appropriate documentation and certifications in complete and acceptable form are provided, as may be required by the contract documents.

In this case, the resolution of the dispute depends in part on whether either of the alleged conditions precedent, i.e., the provision of the subcontractor’s lien waivers or the provision of as-built piping schematics and labor and material warranties, were actually conditions precedent.  In addition, if one or both is deemed a condition precedent, the court must determine whether the condition precedent was fulfilled.  The answer to these questions required interpretation of the contract.  Under the terms of the contract the County was required to pay upon receipt of the “project close out documents” an undefined term in the contract.  The failure to define this term created ambiguity in the contract thereby allowing the parties to introduce parole evidence concerning their intent with respect to the meaning of this term.  Therefore, it was inappropriate for the trial court to grant summary judgment since facts were in dispute.  The case is reversed and remanded for further proceedings.  Systemaire, Inc. v. St. Charles County, 2014 WL 2108953 (Mo. App. E. D., 2014)

Comment Howard: This case also suggests that determining exact conditions when a contractor is entitled to payment of the retainage is important.  In my mind, having the as “built documents” and the warranties is extremely important particularly with respect to the kind of work that was being performed for this project where there were a lot of mechanical components.  Maintenance of the equipment in the future will surely be a necessity; therefore, warranties along with the as built documents are critical.

Outsourcing Of Employees Upheld.

The Treasurer for the City of St. Louis (Treasurer) is the supervisor of Parking Meter Division (PMD) and as supervisor she is required to establish and maintain a parking meter fund.  The City ordinances require the Treasurer to establish a Parking Meter Division (PMD) and provide that the Treasurer shall appoint such personnel as are necessary for the performance of said duties as are provided for in the budget.  Pursuant to the ordinance, the salaries of the appointees are to be fixed by ordinance, and the “salaries and expenses” are to be paid from the parking meter fund and not the general revenue of the City.  In addition, the Treasurer had the authority to enter into contracts including “public–private parking ventures.”

The Treasurer decided to enter into a contract to outsource the PMD thereby terminating all of the employees except for some supervisors needed to supervise the outsourcing contract.  The employees who were terminated filed suit requesting a declaratory judgment and damages.  The trial court ruled that the Treasurer did not have the authority under the City ordinances to outsource the PMD and ruled in favor of the employees.  The Treasurer appealed the decision to the Eastern District, which reversed based upon provisions in the code that allow the treasurer to enter into contracts.  The Court found that the outsourcing did not effectively transfer all of the functions to an outside source (thereby eliminating the PMD) since the Treasurer retained supervisory employees to monitor the outsourced contract.  The Treasurer had the authority under the City ordinance to exercise discretion as to how to staff the PMD.  This language (authority to exercise discretion as to how to staff) was inconsistent with the trial court’s determination that the Treasurer did not have authority to terminate the employees so that the employees’ work could be outsourced pursuant to the contract.  Rencher v. Jones, 2014 WL 2107868 (Mo. App. E.D., 2014)

Comment Howard: This decision seems to be a commonsense decision since the important thing is to provide these services in the most cost effective way, which may or may not be outsourcing or providing this service in-house.  The outsourcing did not effectively eliminate the parking meter function since supervisors were retained to monitor the contract.

 Missouri Flag Desecration Statute And Ordinance Found Unconstitutional.

While standing in his front yard, Snider attempted to set fire to an American flag.  When he was unable to ignite the flag, he shredded it with a knife and threw it into the street.  A neighbor who had observed the incident reported it to the police.

Officer Peters (Officer) responded to investigate.  Upon arriving at the scene, he saw the flag in the road and Snider standing in his yard.  The Officer asked Snider why he had destroyed the flag. Snider replied, “he hated the United States because it was the country’s fault that he could not find a job.”  The Officer issued Snider a citation for violating the City of Cape Girardeau’s (City) littering ordinance.

Upon the Officer returning to the station, another officer informed him of a Missouri statute prohibiting flag desecration.  After reviewing the statute, § 578.095, the Officer drafted a probable cause statement indicating he believed Snider had committed the criminal offense of desecration of the American flag.  The State law provided under Section 578.095, “Desecration of flags 1. Any person who purposefully and publicly mutilates, defaces, defiles, tramples upon or otherwise desecrates the national flag of the United States or the state flag of the state of Missouri is guilty of the crime of flag desecration.”

The Officer submitted the probable cause statement to Cape Girardeau County Prosecuting Attorney (Prosecutor).  After reviewing the probable cause statement, the Prosecutor submitted a warrant application to the Circuit Judge of Cape Girardeau County, who issued the warrant for Snider’s arrest.  On October 23, 2009, the Officer executed the warrant and arrested Snider for violating § 578.095. Snider was held in jail for approximately eight hours when a local news reporter called the prosecutor and asked him if he was aware of Texas v. Johnson.  Upon reading the case, the Prosecutor dismissed the charge against Snider, and Snider was released from jail.

Snider filed a 42 U.S.C. § 1983 action against Cape Girardeau, the Officer, and the Prosecutor.  Missouri intervened in the action.  Snider sought nominal and punitive damages, injunctive relief, and a determination that the state flag desecration statute, § 578.095, and Cape Girardeau’s substantively identical ordinance, § 17–5, violated the First Amendment.  Snider claimed his arrest violated his constitutional rights under the First, Fourth, Fifth, and Fourteenth Amendments, and Cape Girardeau developed and maintained policies, customs, and practices exhibiting deliberate indifference to the constitutional rights of Cape Girardeau citizens, including failing to adequately train its police officers.

All parties filed motions for summary judgment.  The district court granted Snider’s motion for summary judgment against Missouri, granting a permanent injunction against the enforcement of § 578.095.  The district court denied Missouri’s motion for summary judgment.  The district court denied Snider’s motion for summary judgment against Cape Girardeau and the Prosecutor, and granted summary judgment in favor of Cape Girardeau and declared the claim against Prosecutor moot.  The district court also did not grant the Officers’ motion for summary judgment on the basis of qualified immunity, concluding the Officer violated Snider’s constitutional rights under the First and Fourth Amendments.

A trial was held to determine Snider’s damages, after which the district court entered a judgment in favor of Snider and against the Officer in the amount of $7,000 in actual damages. The court denied punitive damages and entered judgment in favor of the City of Cape Girardeau and against Snider.  Finally, the district court awarded Snider’s attorneys $61,890 in attorneys’ fees plus $266.68 in costs.  The award was against the Officer and Missouri, jointly and severally. The district court declined to apportion the attorneys’ fees or lower the attorneys’ hourly rates.

The Officer concedes he deprived Snider of his First and Fourth Amendment rights.  Thus, the question was whether those rights were clearly established at the time of Snider’s arrest.  This inquiry turned on the objective legal reasonableness of the Officers’ action, assessed in light of the legal rules that were clearly established at the time it was taken.

Both the Officer and the Prosecutor stated they were unaware of the United States Supreme Court’s decisions in Texas v. Johnson, 491 U.S. 397, and United States v. Eichman, 496 U.S. 310, which struck down statutes criminalizing flag desecration as unconstitutional.  Based on these precedents the Eighth Circuit found that the Missouri flag desecration law and the City ordinance was unconstitutional on their face.

Comment Howard. The most interesting aspect of this case was that the City had no liability for failure to train its officers because under state law police officers are mandated to take a 600-hour training course provided by the state.  I have not seen this analysis before but it sounds good to me.  The court commented that inexplicably neither the Prosecutor who signed the complaint nor the magistrate that issued the warrant for the arrest of Snider were aware of the invalidity of the flag desecration laws but the Officer was liable in the amount of $7,000 to the plaintiff for failure to know that the Missouri and the City flag desecration laws were unconstitutional.  Of course, that is the law but it doesn’t make sense to hold the officer liable when a person who has been trained in the law has no liability (based on the defense of absolute immunity) when a simple Google search can disclose the unconstitutionality of such laws.  The Court did not apportion liability between the Officer and the State thereby making both parties joint and severally liable.  Seems to me that the state should bear the full brunt of the liability having on the books a law that was clearly unconstitutional.  Maybe the State should get 99% of liability and the Officer gets 1% since he was truly an innocent victim of an egregious error.