February Newsletter (Issue 02-2016)


There Is No Constitutional Right For Nonviolent Felons To Possess Or Own Firearms

121712_gun_salesClay was stopped on January 26, 2015, for a traffic violation and was found to possess a revolver.  Police ran his record and arrested him after discovering he had a prior felony conviction (Clay’s conviction was for a nonviolent felony).  Clay was charged with possession of marijuana in violation of Section 195.202 and with unlawful possession of a firearm in violation of Section 571.070.1(1), which prohibits persons previously convicted of a felony from possessing firearms.

Clay moved to dismiss the unlawful possession charge, claiming that Article I, Section 23 of the Missouri Constitution (Amendment 5) prohibited the legislature from criminalizing his possession of a firearm.  The trial court agreed and dismissed the firearms possession count.  The State appealed to the Missouri Supreme Court.  The trial court’s decision was issued prior to the Court’s opinions in State v. Merritt, State v. McCoy, and Dotson v. Kander.

The Missouri Supreme Court did not reach the issue in Merritt, as to whether or not, Amendment 5, prohibited felons from possessing firearms because the crimes that Merritt was charged with occurred before August 5, 2014, the date Amendment 5 was adopted. (Amendment 5 applied only prospectively).  Clay was charged with possession of a firearm by a felon after August 5, 2014, putting at issue the question of how to apply Amendment 5 prospectively.  Clay and Freedom Center of Missouri, as Amicus argued that under Amendment 5 the legislature retained the authority to regulate the possession of arms by violent offenders and those with a mental disorder or infirmity; therefore, Amendment 5 by implication prohibited any regulation of possession of firearms by nonviolent felons and in any event the statute did not pass the strict scrutiny test.

The Court reasoned that the Missouri Constitution is not a grant of power but restricts powers. “Consequently, the General Assembly has the power to do whatever is necessary to perform its functions except as expressly restrained by the Constitution.” As noted in State v. Merritt, the ballot title to the amendment failed to state any substantive changes in the law.   In addition, the Court previously ruled that Amendment 5 did not change the law because strict scrutiny applied before the Amendment.

The Court concludes that: “Missouri’s constitution does not prohibit the legislature from restricting nonviolent felons’ right to possess firearms.  Section 571.070.1 survived strict scrutiny review under the prior version of Article I, Section 23, and this Court already has held that Amendment 5 did not substantially change Article I, Section 23.” State of Missouri vs. Clay, (SC94954, 2/9/16)

Comment Howard: The results in the above cases were a foregone conclusion, based upon the Courts earlier decisions.  Nevertheless, the Freedom Center of Missouri expressed shock, dismay, and indignation attempting to place the blame squarely on the Court, instead of the failure of the legislature to submit to the voters a ballot title that was fair, which explained to the voters the changes to the Constitution.  The Court’s opinion makes it clear that the General Assembly retained the power to repeal or adopt law pertaining to nonviolent felons to own or possess firearms.

Damage To Sewer Lines Of MSD By City Was Not a Taking

The City of Bellefontaine Neighbors (City) initiated a street improvement and resurfacing project.  The City hired Sherrell Construction Inc. as general contractor who hired Lift Rite Inc. to conduct mudjacking services for the project and P.H. Weis & Associates as engineer (Collectively referred to as Contractor).  Mudjacking is a process of pumping a concrete-like slurry underneath the streets to fill the voids.  When Contractor pumped the concrete slurry under the streets, some of the slurry was pumped into and hardened inside the sewer lines of the Metropolitan Sewer District (MSD), requiring MSD to replace the lines to make them usable again at a cost of $66,860.25.
MSD filed suit against the City, claiming inverse condemnation.  The City moved to dismiss for failure to state a claim, arguing that inverse condemnation applies only in the case of taking private property, not public property, and that sovereign immunity applied, which had not been waived.  The motion of the City was granted and MSD appealed to the Missouri Supreme Court.

Inverse Condemnation
The questions before the Court were whether or not the actions of the City in performing mud jacking services that damaged MSD property constituted a taking under the theory of inverse condemnation based upon Article I, Section 26 of the Missouri Constitution and whether or not the City was protected by the doctrine of sovereign immunity.
Article I, Section 26 of the Missouri Constitution provides: “That private property shall not be taken or damaged for public use without just compensation.” Inverse condemnation is described by the Court as when a “…public entity does not initiate condemnation proceedings but nonetheless intentionally or accidentally takes private property, such as when it damages private property or mistakes boundaries or property rights.”

The Court interpreted the use of the term “private property” in Article I, Section 26 according to its plain meaning in the dictionary because there is no ambiguity with respect to the meaning of this term; therefore, since MSD is a public entity the taking of its property was not actionable under inverse condemnation.

Sovereign Immunity
MSD argued that sovereign immunity did not apply between public entities.  The Court puts to rest this argument by noting “…the Missouri legislature reinstated sovereign immunity as it existed at common law prior to Jones.”  Sovereign immunity applies to the government and its political subdivisions unless waived or abrogated or the sovereign consents to suit; therefore, since MSD did not plead any exceptions to the doctrine of sovereign immunity this claim failed.  The Court takes particular note of the fact that MSD did not plead that the City in repairing its streets may have been engaged in a proprietary function.  Metropolitan St. Louis Sewer District, v. City of Bellefontaine Neighbors, (SC94831,  1?12/16)

Comment Howard: I would be careful about relying on this decision with respect to the defense of sovereign immunity because it would seem that had MSD pled that fixing streets was a proprietary function under common law MSD might have stated a cause of action.

Advisory Opinion By The Personnel Board Is Not A Contested Case

Sanders an employee of the City of Columbia (City), with over 22 years of experience, as a police officer was charged with misconduct because of his alleged use of excessive force in handling a prisoner.  The Internal Affairs Unit for the City conducted a review and determined that the charge against Sander was not warranted.  The Police Chief rejected this finding and fired Sanders who appealed the decision to the PAB.

The City Charter provides that the Personnel Advisory Board (PAB) conducts hearings with respect to decisions that result in the demotion, suspension, or dismissal of an employee. The hearing before the PAB provides for presentation of evidence, cross-examination of witnesses and representation by an attorney, which is required in a contested case.  After a hearing the PAB makes a recommendation to the City Manager, which is advisory because under the Charter the City Manager has complete discretion to make the final decision.

After the Sanders hearing the PAB made its written findings of fact and conclusions of law and issued its decision to the City Manager, recommending that Sanders be fired.  The City Manager fired Sanders, who appealed the decision to the circuit court under the Missouri Administrative Procedures Act (MAPA) as a contested case.  The circuit court reviewed the matter, based on the record made before the PAB as a contested case and determined that the decision of the City Manager was not supported by competent and substantial evidence; was not authorized by law; was arbitrary, capricious, and unreasonable; and was an abuse of discretion.  The circuit court directed that the City reinstate Sanders.  The City appealed to the Western District, which reversed and remanded to the circuit court for a de novo hearing as a non-contested case.

Even though there was a required hearing before the PAB, where evidence was taken, the decision of the PAB did not determine the rights, duties, or privileges of specific parties, as required by section 536. 010(4), of the MAPA because the recommendation of the PAB was advisory.  The City Manager has the right to make the final decision.  Simply put, in order to be “contested case” the “hearing” portion of the grievance process “…must allow each party to be heard and to address the evidence of the opposing party that ultimately will be relied upon by the person or entity making the final decision.”  Sanders v. City of Columbia, (WD78460, 02/9/16).

Comment Howard: If you are not sure about the process for disciplining employees in your city I would recommend you review the procedures to be sure that whoever holds the hearing has the final authority to make the determination with respect to discipline.

Statutory Exception With Respect To Payment To A City By A Fire District Is A Special Law

The General Assembly of the State of Missouri, adopted in 2013 Section 321.322.4, that made an exception with respect to payment to a city by a fire district when a city annexed part of the land within a fire district.

Section 321.32 2.4 provides: “The provisions of [Section 321.322.1] shall not apply where the annexing city or town operates a city fire department, is any city of the third classification with more than six thousand but fewer than seven thousand inhabitants and located in any county with a charter form of government and with more than two hundred thousand but fewer than three hundred fifty thousand inhabitants, and is entirely surrounded by a single fire protection district.”

The City of De Soto (De Soto) filed a declaratory judgment action seeking a declaration that Section 321.322.4 was a special law, violating Article III, Section 40 of the Missouri Constitution, which prohibits special laws.  De Soto filed a motion for summary judgment. The State filed a cross-motion for summary judgment, arguing that the criteria in the statute are open-ended because they are all subject to change through population growth or political decisions.

The trial court granted the State’s motion and overruled De Soto’s motion finding that the criteria were open-ended because “other political subdivisions … could be included [under section 321.322.4] based on political decisions made … by the people of particular Missouri cities and counties.”  De Soto appealed to the Missouri Supreme Court.

The record showed that De Soto operates a city fire department; De Soto is a third-class city with an estimated population of 6,421 located in Jefferson County; Jefferson County is a charter county and has a population of 218,733; and De Soto is completely surrounded by a single fire protection district.  De Soto, therefore, meets all six criteria set out in the exclusion contained in Section 321.322.4.  While many Missouri cities are of comparable size to De Soto, the record indicates that no other Missouri city meets the six criteria set out in Section 321.322.4.

The Court applied the Jefferson County test, which sets out a three-part test for determining when a population-based classification is a special law and is unconstitutional.  The three-part test requires proof that other political subdivisions will not fall within the following: “(1) a statute contains a population classification that includes only one political subdivision, (2) other political subdivisions are similar in size to the targeted political subdivision, yet are not included, and (3) the population range is so narrow that the only apparent reason for the narrow range is to target a particular political subdivision and to exclude all the others.

The Court explains: “Where, as here, the three Jefferson County elements are satisfied, a law is presumptively special and the burden shifts to the State to show a substantial justification for the special law.  The State offered no evidence of such a justification in response to De Soto’s motion for summary judgment or in support of its own motion for summary judgment.  Entry of judgment for the State, therefore, was error.  City of De Soto vs. Nixon, (SC94746, 01/12/16)

Comment Howard: This is an extremely well written opinion.  If you have an issue as to whether or not a statute is special law this case is your starting point and probably your finishing point.

Substantial Step Towards An Act Of Violence

The recent decision by the Missouri Supreme Court in State of Missouri v. Lammers, provides insight into the difficult question of what constitutes a “substantial step towards an act of violence” that could have lead to a Columbine like massacre.  This case is significant because it puts in focus the very difficult question of when somebody takes a substantial step towards an act of violence allowing charges to be filed before an act of violence.

Defendant was 20 years old living at home with his parents south of Bolivar.  Defendant was taking prescription drugs for depression and had been hospitalized a number of times for psychiatric problems.  One of these hospitalizations occurred in 2009 after a psychotic episode at the local Walmart, in which the sheriff’s office was called to intervene. Although Defendant’s mother took efforts to ensure he took his medication, he did not like taking it and admitted that, in the past, he had sometimes “cheeked” his medication by hiding the pills in his mouth and pretending to swallow them.
Defendant had had prior violent incidents as a result of his mental illness, and he was aware his mother had specific concerns that he might be capable of a mass shooting.  Two months before the events in Bolivar, he watched a movie about the Columbine shootings, envisioned doing something similar, and bought two assault rifles to carry out a mass shooting, with Walmart in mind as a specific target.  Defendant and his girlfriend took the guns to the apartment of a mutual friend who had experience handling assault rifles because the Defendant had never shot a gun before.  The friend helped him store the weapons so that Defendant’s mother would not be aware that he bought the assault weapons.
Defendant did not tell his parents about the purchase, but he told others he planned to use the rifles for hunting, despite the facts that such rifles were not typically used for hunting and that the Defendant had no hunting license, had never been hunting, and had never shot a gun.
The day after the purchase of the second rifle, Defendant had a friend show him how to operate the guns and engaged in numerous rounds of target practice.  When his mother learned of Defendants purchase of the firearms she notified the Bolivar police who executed a “well-being” check on the Defendant.
When asked by the police the Defendant specifically described his plan “from start to finish.”  Defendant stated that he would have walked in the front door and started shooting.  He would have shot random people until police arrived.  He also admitted that, though he considered a movie theater as a target, Walmart was the more practical choice because of the higher density of people and the fact that, “if I ran out of ammo, all I had to do was break the glass.”
At the conclusion of the interview, the detective placed Defendant under arrest, charging him with attempted first-degree assault and armed criminal action.  Following a mental examination, the trial court found Defendant mentally competent to stand trial, and Defendant waived his right to a jury trial.  Defendant filed a motion to suppress his statements to law enforcement.  The trial court overruled the motion to suppress, and the recorded interview was admitted into evidence.  The court found the Defendant guilty of attempted first-degree assault and armed criminal action and sentenced him to two concurrent terms of 15 years imprisonment.  Defendant appealed to the Missouri Supreme Court.
Did The Defendant Have Criminal Intent?
The Court concludes that there was sufficient evidence to find that Defendant had the purpose to kill or cause serious physical injury to another person.  Defendants own statements offer direct evidence of such intent.  His idea of emulating the Columbine shooters occurred well before he bought the guns and practiced shooting.  When questioned by police, he described in some detail how he planned to act.  Further, his conduct in purchasing the guns and learning to shoot them, taken together with his repeated subterfuge regarding why he bought the guns, are probative of a criminal intent.


Did the Defendant take a substantial step towards the commission of the offense?
Defendant was charged with violation of 565.050, which makes it a crime to knowingly attempt to cause serious physical injury to another person.  A person attempts to commit a crime, under section 564.011, when, “with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense.”
“Substantial step” is defined as “conduct, which is strongly corroborative of the firmness of the actor’s purpose to complete the commission of the offense.” “Intent is rarely susceptible to proof by direct evidence and is most often inferred circumstantially.”

When Missouri adopted the Model Penal Code in 1979 it lowered the threshold for the offense by adopting the “substantial step” test. “The result was that the emphasis shifted away from what an actor had left to accomplish and refocused, instead, on what the actor had already done.”  In this case, there was sufficient evidence of Defendants conscious purpose to commit assault, thereby allowing a reasonable fact finder to deem that the later purchase of assault rifles and ammunition together with extensive target practice strongly corroborated his purpose; therefore, the Defendant’s conduct was a substantial step under section 564.011.  State of Missouri v. Lammers, (SC94977, 02/9/60)

Comment Howard: Local government officials may be called to make almost spontaneous decisions with respect to how to proceed with a threat.  This case provides some insight as to whether or not the police have a basis to make a probable cause arrest.  In these situations you probably won’t have a lot of time so this case ought to be on speed dial just in case.

Police Need A Search Warrant To Search A Purse, Grocery Bag, Backpack Or Other Item Not Within The Immediate Control Of The Arrestee

The Missouri Supreme Court reversed, what it considered to be a misunderstanding of the law, with respect to whether or not the police had the right to search a person’s purse, grocery bag, backpack or other item that was not within the immediate control of the arrestee without a search warrant.  In State of Missouri v. Carrawell, the police arrested a fleeing suspect who had possession of a plastic grocery bag.  The focus of the case was what constitutes “immediate control” of the arrestee.


The suspect refused to let go of a plastic grocery bag during an arrest, until the officers pried it loose from his hands.  After the police subdued and handcuffed the arrestee he was placed in the back seat of a police vehicle.  The police then searched the grocery bag, which was outside the police vehicle and they found heroin.

The Defendant was charged with resisting arrest and possession of a controlled substance. A motion to suppress the evidence was overruled and the arrestee was tried and convicted. The arrestee appealed to the Missouri Supreme Court.

Warrantless searches are per se unreasonable under the Fourth Amendment, unless an “established and well-delineated” exception applies.  Incident to arrest, officers may lawfully search “the arrestee’s person and the area ‘within his immediate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.”

In this case the search of the plastic bag occurred outside the police car, after the arrestee had already been handcuffed and placed into the back seat of the police car.  Therefore, the plastic bag was not within the immediate control of the arrestee at the time of the officer’s search.  The general rule adopted by the United States Supreme Court is:

“Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.”

A number of decisions by the Missouri Court’s of Appeals had mistakenly held that an arrestee’s personal effects (e.g., a purse or backpack) could be searched even when they are not within the immediate control of the arrestee because they were the personal effects of the person.  The Missouri Supreme Court stated that the reasoning in the decisions by the Court of Appeals were based on a misunderstanding of law and should no longer be followed.  State of Missouri v. Carrawll, (SC94927, 01/12/16)

Comment Howard: This decision is a significant change in the law; therefore, you should alert your local law enforcement agency asking them to review current procedures and if necessary change standard operating procedures to conform to this decision.

Comment Ragan:  This decision shows a lack of prosecutorial experience on the Supreme Court.  The officer would have had to transport the defendant to the jail where the item would have been searched during the booking process.  The court went out of its way to reach this decision.  It completely ignored inevitable discovery to create new law.

Discussion Of Potential Supreme Court Decisions

In case you missed it below is a discussion by Lisa Soronen concerning the impact of the recent death of Justice Scalia on cases important to local government.


“HI league directors:  This had to be written.  Pass it along if you like.  So the million dollar question (other than who will fill Justice Scalia’s seat) is what will happen to undecided Supreme Court cases heard or to be heard this term.  The short answer is it depends and in all instances isn’t entirely clear.

If a case isn’t 4-4 it will be decided as usual with only eight Justices.

If a case is going to be decided 4-4 the Court has two choices:  wait for the ninth Justice to join the Court and rehear the case or issue a non-precedential 4-4 decision that affirms the lower court decision.

SCOTUSblog publisher Tom Goldstein predicts that the Court will rehear 4-4 cases.

It is of course impossible to know which cases would have been 5-4 had Justice Scalia lived. But a good rule of thumb is that particularly important, controversial cases are often 5-4. Six cases this term meet just about any definition of important and controversial.

Let’s take a look at the five such cases affecting state and local government. Unsurprisingly, Justice Kennedy’s vote probably will be key in all of them.

Public Sector Unions

In Friedrichs v. California Teachers Association the Court will decide whether to overrule Abood v. Detroit Board of Education (1977), requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs.

Justices Scalia and Kennedy joined two previous Justice Alito opinions criticizing Abood.  Unless Justice Kennedy has a change of heart or one of the other conservative Justices has second thoughts about overturning precedent regardless of how much he dislikes it, this case is likely to be reheard.


In United States v. Texas the Court will decide whether the President’s deferred action immigration program violates federal law or is unconstitutional.

The stakes are the highest if the Court is 4-4 in this case.  The federal government and the Supreme Court worked hard to make sure this case got on the docket this term because a new President could scrap the program.  If this case is reargued, unless the new Justice joined the Court next fall, it seems unlikely the Court could render an opinion before January 2017.

One-Person One-Vote

The issue in Evenwel v. Abbott is whether voting population must be the metric in ensuring that state and local legislative districts comply with the “one-person one-vote.”
Evenwell is considered the most important voting rights case in decades.  Using voting population as the metric tends to favor more rural, Republican areas.  This case seems ripe for rehearing unless Justice Kennedy sides with the liberals.


The issue in Whole Women’s Health v. Cole is whether Texas’s admitting privileges and ambulatory surgical center requirements create an undue burden on women seeking abortions.
The conventional wisdom on abortion is that only Justice Kennedy’s votes is at play.  If he is willing to strike down Texas’s laws this case will not be reheard.  The fact that Justice Kennedy voted to prevent these laws from going into place before the Court decided to review the case indicates he may be skeptical of the laws, making a 4-4 vote less likely.

Affirmative Action

In Fisher v. University of Texas at Austin  the Court has agreed to decide whether UT-Austin’s race-conscious admissions policy is unconstitutional.
More conservatives Justices are probably as likely to win this case with or without Justice Scalia.  Justice Kagan is recused and Justice Kennedy is no fan of affirmative action.  But the Court heard this case once before rendering a narrow 7-1 opinion against UT-Austin.  You never know with cases involving race.”