August Newsletter (Issue 08-2015)

United States Supreme Court Required That The Communication Must Be Intended As A Threat

After his wife left him, Elonis, used Facebook to post self-styled rap lyrics containing graphically violent language and imagery concerning his wife, co-workers, a kindergarten class, and state and federal law enforcement. These posts were often interspersed with disclaimers that the lyrics were “fictitious” and not intended to depict real persons, and with statements that Elonis was exercising his First Amendment rights.  Many who knew Elonis saw his posts as threatening, including his boss, who fired him for threatening co-workers, and his wife, who was granted a state court order protecting her from abuse by Elonis.

When Elonis’s former employer informed the Federal Bureau of Investigation of the posts, the agency began monitoring Elonis’s Facebook activity and eventually arrested him.  He was charged with five counts of violating 18 U. S. C. §875(c), which makes it a federal crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.”

At trial, Elonis requested a jury instruction that the Government was required to prove that he intended to communicate a “true threat.”  Instead, the District Court told the jury that Elonis could be found guilty if a reasonable person would foresee that his statements would be interpreted as a threat.  Elonis was convicted on four of the five counts and appealed to the Third Circuit, which affirmed, holding that the Statute required only the intent to communicate the words that the defendant understood, that a reasonable person would view the communication as a threat.

The United States Supreme Court granted certiorari to resolve a split between the Circuits, as to whether or not the Statute required the Defendant to be aware of the threatening nature of the communication.

The Statute does not specify whether the defendant must intend that the communication is a threat nor does it indicate whether or not a particular mental state is required in order for there to be a violation.  Earlier decisions by the United States Supreme Court held that the omission from a criminal enactment of criminal intent should not be read as dispensing with a requirement of criminal intent.  When federal criminal statutes, are silent on the required mental state, the Supreme Court reads into the statute mens rea as a necessary requirement to separate wrongful conduct from otherwise innocent conduct; therefore, the Statute, required proof that the communication was transmitted and that the defendant intended it to be a threat.

Elonis’s conviction was premised solely on how his posts would be understood by a reasonable person, which is a standard feature of civil liability in tort law, but is inconsistent with “the conventional requirement for criminal conduct, showing awareness of some wrongdoing.  Having liability turn on whether a ‘reasonable person’ regards the communication as a threat, regardless of what the defendant thinks, ‘reduces culpability on the all-important element of the crime to negligence.”  Elonis v. United States, (13–983, 6/1/15).

Comment Howard: It is important to recognize that this case leaves for a future date whether or not “recklessness” is sufficient to satisfy the required intent in a criminal matter.  The concurring and dissenting opinion by Justice Alito stated that a defendant could be convicted if he or she consciously disregards the risk that the communication transmitted will be interpreted as a true threat (recklessness).  Furthermore, there was nothing in the majority opinion that prohibited a lower court from adopting a standard of recklessness.  Justice Thomas, also extended the invitation for the lower courts to take up the recklessness issue by stating in his dissent that other courts can safely infer that a majority of this Court would not adopt an intent-to-threaten requirement, since the majority opinion carefully leaves open the possibility that recklessness may be enough.

Missouri Law on Threats

The one case in Missouri, State of Missouri vs. Metzinger, https://www.courts.mo.gov/file.jsp?id=83896 that addresses what constitutes a “threat” in the context of a terrorism statute should be carefully reviewed in light of the decision by the United States Supreme Court.  As Missourians already know, violence by deranged persons or those who are just simply mad at local government is more than an idle threat.  See review of the Metzinger, case in the March 2015 MMAA newsletter by clicking here. https://mmaanewsletter.org/2015-newsletters/march-newsletter-issue-03-2015/

Also you may also want to look at Section 574.11 5.1 RSMo., (effective January 1, 2017), which defines what constitutes a terrorist threat with respect to “…frightening ten or more people or causing the evacuation, quarantine or closure of any portion of a building, inhabitable structure, place of assembly or facility of transportation…” provided other elements of the statute are satisfied.

City Collector Has No Authority To Collect Court Cost For Circuit Court

Wiley v. Daly, Collector Of Revenue For The City Of St. Louis, (ED 102019, 8/11/15), involves the practice of the Collector of the City of St. Louis (Collector) collecting fees, which the Collector denominates as “court costs.”  These costs are related to suits brought by the Collector against residents of the City of St. Louis for delinquent property taxes.  The Collector brought suit against several Taxpayers for outstanding property taxes and assessment of interest, penalties, attorney’s fees and “court costs.”

The issue in this case, was whether or not the Collector had any authority to collect the court cost for the circuit court even though the payments were transmitted by the City to the Clerk of the Circuit Court with the consent of the Clerk who showed the court cost as paid.  The practice of collecting court cost for the circuit court by the City Collector started innocently enough, years ago, as a matter of ministerial expediency.  The Collector testified that the collector’s office:

“…would send the taxpayer over to the courthouse to pay the court costs . . . [a]nd then they would send them back to the Collector’s office, run them back and forth across Tucker. And someone . . . years ago decided it would be easier for like basically a one-stop shop if they would just pay it all and we would then transmit this money back to the court. That way we’re not running the taxpayer all over. Another thing too is a lot of people don’t even come to our office, they do this by mail. They just want – what they’re after is a paid receipt. And they’re willing just to resolve these cases. So it’s done for expediency for the taxpayer.”

In this matter when the City sued the Taxpayers for delinquent property taxes the Taxpayers did not enter an appearance nor did they contest the lawsuit filed against them for delinquent property taxes. Instead, each Taxpayer tendered the total sum demanded, including fees denominated as “court costs,” directly to Collector’s office; however, one Taxpayer submitted his payment of the costs designated as court cost “under protest,” while the other Taxpayer did not pay court costs under protest.

Upon receiving payment of the total sum demanded, including “court costs,” the Collector issued a “paid” receipt to the Taxpayer and then forwarded the payment for the “court costs” to the Clerk of the Circuit Clerk, who taxed court costs against each Taxpayer and dismissed “with prejudice” the underlying lawsuits brought against them.  After procedural maneuvering, the Taxpayers filed a third amended petition in three-counts.  The trial court ruled against the Taxpayers and they appealed to the Eastern District.

Count I, of the Taxpayers lawsuit requested certification of a class-action to recover charges that the Collector had received for the recovery of court costs for the collection of   property taxes and an order prohibiting the Collector “…from withholding personal property tax receipts verifying payment of any delinquent tax when payment of the full amount of the delinquent tax is tendered; requiring Respondents to establish a fund to reimburse purported class members who were sued for delinquent personal property taxes who paid the Collector “court costs” arising out of such lawsuits, from 2002 up to the present date; and (4) requiring Respondents to refund all interest on “court costs” already collected.”

Count II requested a refund of Court Cost improperly collected with interest and attorney’s fees while Count III alleged there was a violation of the Hancock amendment requesting certification of a class for that violation and a refund.

Circuit Clerk: The Eastern District ruled that the trial court lacked the statutory authority to determine Taxpayer’s Count I claim for declaratory relief against the Circuit Clerk as well as their Count II claim seeking a refund of “court costs” against both Respondents under Section 514.270.  The Court held that the exclusive remedy for seeking review of a circuit clerk’s bill of costs and a refund of unlawfully charged “court costs” must be by motion to the trial court where the costs were assessed.

City Tax Collector: The Eastern District reasoned that there was no authority in Missouri law supporting the practice of the City Collector of collecting court cost since that was a statutory duty of the circuit clerk. “Administrative staff, like the courts, must follow the intent of the legislature according to the law as written and have no authority to revise it for the sake of expediency.” Therefore, the trial court erred by determining that the collection of “court costs” by the Collector was lawful. Having determined that the charges made by the city to collect court cost on behalf of the circuit clerk was unlawful the Court reversed directing the Circuit Court to grant a declaratory judgment for the Taxpayers on their claim concerning the payment of the court cost.

Hancock Challenge: With respect to Count III the Eastern District reason that the “…Collector did not have any discretion with respect to use of the funds at the time of collection, and he forwarded the funds to Circuit Clerk, the “court costs” did not belong to a county or other political subdivision when they were collected.” Consequently, they did not constitute a tax within the meaning of the Hancock Amendment.  Wiley v. Daly, Collector Of Revenue For The City Of St. Louis, (ED 102019, 8/11/15)

Comment Howard: I do not know whether other local governmental agencies collect court costs for the circuit clerk but if your local government agency follows this practice you need to carefully review this case.  I thought that the case created an unusual situation where there was no dispute about whether the circuit clerk was entitled to court cost or if the Taxpayers had paid them.  In other words, the City of St Louis gets stuck for court cost paid when the City collects property taxes starting from 2001 if the class action is certified.  It would seem that the class action vultures saw an opportunity for big fees based upon a technical error.  The court ignored long-standing local government law principles requiring a challenge to the legality of a payment when it is made.  This case seems to substantially erode the principle that a dispute involving city charges should be resolved by filing a protest at the time the payment is made.  The cases cited by the Court are primarily based upon voluntary payments made by private businesses to one another that do not relate to governmental actions to collect fees and charges as well as taxes.

Update On Reed v. Town of Gilbert, Ariz.,

In June 2015, we reported in the newsletter’s on Reed v. Town of Gilbert, Ariz., involving a sign ordinance stating that this decision would have tremendous impact, not only with respect to signs but all sorts of other government regulations that are made based on content. A recent article in the New Times states that Robert Post, the Dean of Yale Law School believes, “The decision’s logic, he said, endangered all sorts of laws, including ones that regulate misleading advertising and professional malpractice.” http://www.nytimes.com/2015/08/18/us/politics/courts-free-speech-expansion-has-far-reaching-consequences.html?_r=0

Test To Measure Whether Or Not The Use Of Force Violates The Constitution Is Determined By The “Objective Unreasonableness” Standard

While Kingsley was awaiting trial in county jail, officers forcibly removed him from his cell when he refused to comply with their instructions.  Kingsley then filed a complaint in Federal District Court claiming that two of the officers used excessive force against him in violation of the Fourteenth Amendment’s Due Process Clause.  At the trial’s conclusion, the District Court instructed the jury that Kingsley was required to prove, that the officers had “recklessly disregarded Prisoners safety and “acted with reckless disregard of [his] rights.”  The jury found in the officers’ favor.

On appeal, Kingsley argued that the proper standard for judging a pretrial detainee’s excessive force is objective unreasonableness.  The Seventh Circuit disagreed, with Kingsley, holding that the law required a subjective inquiry into the officers’ state of mind, i.e., whether the officers actually intended to violate, or recklessly disregarded, Kingsley’s rights.  The United States Supreme Court granted certiorari to consider whether or not the state of mind of the officers was measured by an objective or subjective standard.

State of Mind – Objective or Subjective Standard The question before the Court was whether or not an excessive force claim, brought by a pretrial detainee, must prove that the officer was subjectively aware that the officers use of force was unreasonable, or whether the officers’ use of that force was objectively unreasonable.

The Court concluded that the required state of mind is objective based upon precedent and pattern of jury instructions.  The Court noted, that there were two separate state of mind questions.  The first question concerns the officer’s state of mind with respect to bringing about certain “physical consequences.”  Did the officer possess a purposeful, a knowing, or possibly a reckless state of mind?  This standard rules out negligence because it requires the use of force be deliberate or “reckless.”  For example, an accidental discharge of a Taser would not be actionable, while tasing someone to subdue them would be purposeful.  The second prong with respect to state of mind requires that the officer “… must possess a purposeful, a knowing, or possibly a reckless state of mind.”

Therefore, a pretrial detainee need only show that the force was purposely or knowingly used was objectively unreasonable.”  Kingsley v. Hendrickson, (14 –6368, 6/22/15).

Comment Howard: This case dramatically changes the law and substantially increases the liability of officers because it reduces the burden of proof to show that officers used unreasonable force.  Justice Scalia described the majority opinion this way.  The Due Process Clause is not “a font of tort law to be superimposed upon” that state system.” “Today’s majority overlooks this in its tender-hearted desire to tortify the Fourteenth.” The courts are going to have to flesh out all of the implications of this decision.  It would seem that Standard Operational Procedures, concerning the use of force should be reviewed.

Felon-In-Possession Law Survives Strict Scrutiny Test

In August of 2015, the Missouri Supreme Court considered the application of the Constitutional Amendment approved by the voters on August 4, 2014, with respect to the right to bear arms in the context of the felon-in- possession law.

In 2012, the Defendant, Marcus Merritt was charged with unlawful possession of a firearm by a convicted felon.  He filed a motion to dismiss the unlawful possession charges claiming the statute violated his right to possess arms under Article I, Section 23.  Defendant was convicted but the trial court ruled that the felon-in-possession statute was invalid applying strict scrutiny.  The State, appealed to the Missouri Supreme Court.

While the appeal was pending the voters on August 4, 2014, approved a constitutional amendment to Article I, Section 23 that stated “strict scrutiny” applied to all laws restricting the right to bear arms.

The sole issue on appeal in State of Missouri v. Merritt was whether or not the felon-in-possession law violated Defendant’s right to possess arms under article I, section 23.

Does The Constitutional Amendment Apply Retrospectively Or Prospectively: Generally, “… a new rule for the conduct of criminal prosecutions is to be applied retroactively to all state or federal cases pending on direct review or not yet final.” However, this case was distinguishable because when construing a constitutional amendment the settled rule is that unless a different intent “…is evident beyond reasonable question, they are to be construed as having a prospective operation only.”  “The amended version of Article I, Section 23 does not contain                                                                                                                                                                                                                                                                                                                                        any text that suggests it was intended to be applied retroactively.”  Therefore, the Amendment applied prospectively only.

Application of Strict Scrutiny: As noted above, the Missouri Supreme Court held last month in Dotson that strict scrutiny applied under the prior version of Article I, Section 23 to cases, regardless of the August 4, 2014 amendment to the right to bear arms.

The Missouri Supreme Court stated that the above construction was necessary in order to validate the August 4, 2014, Amendment to bear arms in the Missouri Constitution. “If the constitutional amendment had changed the level of scrutiny under Article I, Section 23 to strict scrutiny, the Court might have considered the ballot summary at issue in Dotson unfair or insufficient.  But this Court held that strict scrutiny would have applied under the prior version of Article I, Section 23 in the time frame after McDonald was decided, irrespective of the amendment.” In order to emphasize the importance of this particular point the Court went on to say, “This conclusion was necessary to this Court’s analysis and resolution in Dotson and was, therefore, a holding of the Court.”

Therefore, even though the crime was committed in 2012 and the Amendment adopted by the voters on August 4, 2014, did not apply to the felon-in-possession law it was reviewed under strict scrutiny because earlier decisions involving the constitutional right to bear arms made this a fundamental right subjecting it to the rigorous strict scrutiny standard.

The Felon-In-Possession Law Survives Strict Scrutiny: The Court states that there: “…is no settled analysis as to how strict scrutiny applies affecting the right to bear arms, which has historically been interpreted to have accepted limitations.” Application of strict scrutiny depends on context including the controlling facts, the reasons advanced by the government, relevant differences and the fundamental right involved.”

Laws regulating the right to bear arms are not “presumptively invalid.” The Missouri Supreme Court, recognized that the United States Supreme Court’s decisions in Heller and McDonald did not cast doubt on “‘longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” The court also stated in Dotson that it would interpret Missouri Constitutional right to bear arms in the Missouri Constitution the same as the United States Supreme Court.

With respect to strict scrutiny, the Court looked to determine if the law was “narrowly tailored to achieve a compelling interest.” The felon-in-possession law was narrowly tailored to achieve a compelling governmental interest.  The State had a compelling interest in ensuring public safety and reducing firearm-related crime and “protecting the public from crime.”  Prohibiting felons from possessing firearms is narrowly tailored to that interest because “[i]t is well-established that felons are more likely to commit violent crimes than are other law abiding citizens.” In addition, “someone with a felony conviction on his record is more likely than a nonfelon to engage in illegal and violent gun use.”

Therefore, the felon-in-possession law “…is sufficiently narrowly tailored to achieve the compelling interest of protecting the public from firearm related crime.”  State of Missouri v. Merritt, (SC94096, 8/18/15)

Comment Howard: Even though the Missouri Supreme Court held that strict scrutiny applied under the pre-August 2014 Amendment to the Missouri Constitution, this case and Dotson gave the court room to narrowly interpret the strict scrutiny standard to uphold laws that protect the public health and safety of Missouri citizens. This case is extremely important because of its application of strict scrutiny to the felon-in-possession law.  The Missouri Supreme Court reaffirmed its position that its interpretation in Dotson was required because the ballot title was otherwise insufficient in that it did not inform the voters of any changes in the right to bear arms provision in the Missouri Constitution.

Upcoming In September Newsletter:  There were several Missouri Supreme Court red light camera cases decided on August 18, 2015 that will be discussed in the September newsletter.