May Newsletter (Issue 05-2016)


tan-tar-a-resort-golfRegistration for the Summer Seminar is now open. You may REGISTER HERE.  More information will be coming regarding the golf tournament.  It will require a separate registration.  We will send out an email once the details are finalized.

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Barton was involved in a Ambulance_-_6599dfsingle vehicle accident.  After police officer Owens arrived at the accident scene, along with other law enforcement officials, Barton almost fell to the ground on multiple occasions, swayed and used his truck to steady himself.  After a portable breath test indicated that Barton’s blood-alcohol concentration was .11, the officers placed Barton under arrest.  During the search of his person, Barton fell to the ground and was not responsive.  He was checked for a pulse after he did not respond to questions or commands.  Since Barton could not stand on his own, Officer Callison and Owens lifted Barton and placed him into Officer Owens’s patrol car.

Owens transported Barton to the Hot Springs County Detention Center.  Barton was unable to answer questions during the booking process, and when he did speak, his speech was slurred.  At one point during the booking process, Barton fell off a bench onto the floor.

Barton was incarcerated in the Detention Center as a pretrial detainee and placed in a holding room, to which he was unable to reach without being assisted by jail trustees.  Barton was found dead in the holding room shortly after midnight.  An autopsy determined the cause of death to be a heart condition, anomalous right coronary artery, fatty infiltration of right ventricle and atrium of heart.  The autopsy also revealed a small amount of ethanol, a small amount of hydrocodone, and a non-toxic level of an anti-anxiety medication.

Regina Barton, as personal representative for the Estate of Barton, filed suit under 42 U.S.C. § 1983 and the Arkansas Civil Rights Act of 1993 (ACRA), alleging that Arkansas State Trooper Zachary Owens and other defendants denied Barton medical care, in violation of his Fourth, Eighth, and Fourteenth Amendment rights.  Owens moved to dismiss the complaint for failure to state a claim on which relief could be granted asserting that he was entitled to qualified immunity from the federal claim.  The district court denied Owen’s motion that the complaint failed to state a cause of action or that he was entitled to qualified immunity.  Owens appealed to the Eighth Circuit, which affirmed the trial court’s decision.

The Eighth Circuit held that the allegations described above in the complaint stated a claim against Owens.  Accepting these allegations as true, the Eighth Circuit assumed it was reasonable to infer that Owens observed Barton’s symptoms both at the scene of the accident and at the detention center.  Therefore,

“…the inquiry is whether, viewing the facts in the light most favorable to the plaintiff, Owens’s failure to take some action to secure medical care for Barton violated Barton’s constitutional rights.”

In order to determine if failure to seek medical care for Barton violated Barton’s constitutional rights the Court applied the “deliberate indifference” standard, which requires application of an objective and subjective standard.  The complaint stated facts sufficient to demonstrate that Barton suffered from an objectively serious medical need. The allegations in the complaint (that Barton fell down at the scene of his accident, could not walk on his own, became unresponsive to an extent that an officer was obliged to check for a pulse, that Barton could not answer questions at the detention center, and could not remain seated without falling over) showed that the objective standard was satisfied.

In order to satisfy the subjective component of the test it is necessary to show that Owen’s actually knew that Barton needed medical care and disregarded a known risk to Barton’s health.  This requires a mental state “akin to criminal recklessness,” therefore, the complaint must allege facts that demonstrate “more than negligence, more even than gross negligence”.  The mental state sufficient to satisfy the subjective standard can be inferred based upon facts that the medical need was obvious and that the officer’s response was “obviously inadequate.”  In this case, Owen’s had direct knowledge of Barton’s obvious need for prompt medical attention and did not take any steps to secure medical care.  Barton v. Tabor County, Arkansas, (8th Circuit, 14–3280, 4/27/16)

 Comment Howard: This case does a good job of setting forth the standards for determining whether or not a police officer is entitled to qualified immunity for failure to provide medical care.  My experience is that it is difficult for an officer to separate the symptoms of a person who is intoxicated from other medical problems.  For example, many of the symptoms of a person who is intoxicated are similar to a person who has had a stroke.  Standard operating procedure should cover situations like this, with a caveat that it is better to err on the side of caution in determining when to provide medical care.


SCOTUSbuilding_1st_Street_SEJeffrey Heffernan was a police officer in Paterson, New Jersey working in the office of the Chief of Police, Witting.  The mayor of Paterson, Jose Torres, was running for reelection against Lawrence Spagnola.  Torres had appointed Police Chief Wittig and a subordinate who directly supervised Heffernan.  Heffernan was a good friend of Spagnola’s.

Heffernan was not involved in Spagnola’s campaign in any capacity but as a favor to his bedridden mother, Heffernan agreed to pick up and deliver to his mother a Spagnola campaign yard sign.  Other police officers observed Heffernan speaking to staff at a Spagnola distribution point while holding the yard sign.  Word quickly spread throughout the force.

The next day, Heffernan’s supervisors demoted him from detective to patrol officer as punishment for his “overt involvement” in Spagnola’s campaign.  Heffernan filed suit, under section 1983, claiming that the police chief had demoted him because, in their mistaken view, he had engaged in conduct that constituted protected speech depriving him of a “right . . . secured by the Constitution.”

The District Court held that Heffernan had not been deprived of any constitutionally protected right because he had not engaged in any First Amendment conduct.  The Third Circuit affirmed concluding that Heffernan’s claim was actionable under §1983 only if his employer’s action was prompted by Heffernan’s actual, rather than his perceived, exercise of his free speech rights.  The United States Supreme Court granted certiorari to determine whether or not the “right” protected under section 1983 focused on the employee’s actual activity or on the supervisor’s motive.

The Supreme Court reasoned that the inquiry focused on the employer’s motive, even if it was based on the mistaken belief that Heffernan had not engaged in protected speech. This analysis tracks the language of the First Amendment, which centers on the government’s activity.  In addition, the constitutional harm of discouraging employees from engaging in protected speech or association is the same whether or not the employee’s action rests upon a factual mistake.

“We conclude that… the government’s reason for demoting Heffernan is what counts here.  When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U. S. C. §1983, even if, as here, the employer makes a factual mistake about the employee’s behavior.”

The Court notes that an employee has a substantial burden because in order to prove an improper employer motive the employee must show that an employer’s intent to discharge or demote was based upon a belief (even if mistaken) that the employee was engaged in protected activity.  Heffernan v. City of Patterson, (U. S. SCt., 14–1280, 4/26/16)

Comment Howard: It would seem that this case could substantially increase the number of free speech claims because the measure will be what was in the employer’s mind, a subjective standard.


gavelSection 57.95 5.1 RSMo., provides for the assessment of a surcharge of three dollars for any violation of a criminal or traffic all of the state, including infractions.  The clerk responsible for collecting court cost shall collect and disperse such amounts as provided by law with the surcharge of three dollars to be paid to the Sheriff’s retirement fund.  Prior to April 17, 2013, this statute had been interpreted to be inapplicable to the municipal courts.  On April 17, 2013, the Attorney General issued an opinion concluding that “the legislature intended that such surcharge be collected in municipal courts.”  Thereafter, the Missouri Supreme Court issued a revised schedule for collection of court costs by municipal courts that included the three dollar surcharge required by Section 57.95 5.1.

The City of Slater, the Missouri Municipal league, Christine Cates, Barber Schaefer and Jacob Albarelli (collectively referred to at times as Plaintiffs) filed a petition in circuit court seeking a declaratory judgment and injunctive relief alleging that Section 57.955.1 does not apply to municipal courts; and if it did the statute would be unconstitutional under article 1 section 14 of the Missouri Constitution.  The State Courts Administrator, filed a motion to dismiss on the grounds of lack of standing, failure to state a claim and sovereign immunity.  The Circuit Court dismissed the petition against the City, MML, Cates and Schaefer for lack of standing.  The trial court found that Albarelli had standing because he paid the disputed surcharge, however his claim was barred by sovereign immunity. Plaintiff’s appealed the judgment to the Western District, which upheld the circuit court ruling based on lack of standing.  The issues on appeal were limited to whether Plaintiffs had standing and whether or not their claim was barred by sovereign immunity.

In order to have standing the Plaintiff’s must:

“… be within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question to bring an action thereunder.  A plaintiff must show a personal stake in the outcome of the controversy and allege some threatened or actual injury resulting from the putatively illegal action.”

Plaintiffs, Cates and Schaefer alleged that they had standing as taxpayers and as public officials because as administrators they are required to collect the surcharge and remit to the state retirement fund for sheriffs.  In order to establish taxpayer standing, a taxpayer must demonstrate a “direct expenditure” of funds generated through taxation, an increased levy in taxes, or a pecuniary loss attributable to the challenged transaction of the municipality.  Plaintiffs, Cates and Schaefer argued that they have standing because there is a direct expenditure of funds generated through taxation.  The Western District rejected this argument because the alleged illegal activity was not a “direct” expenditure of funds.  A direct expenditure of funds means that the sum is “…paid out, without any intervening agency or step, of money or other liquid assets that come into existence through the means by which the state obtains the revenue required for its activities.”

“Not all uses of governmental revenue are “direct” expenditures under these standards.  A series of cases holds that “general operating expenses which [an agency] incurs regardless” of the allegedly illegal activity are not “direct” expenditures, and are insufficient to establish taxpayer standing. “

The Court concluded that there was no direct expenditure of funds nor did the City, Cates or Schaefer argue that they were affected by the surcharge, other than a minimal expense to collect and distribute the funds, which the court determined was insufficient to constitute a direct injury.  The Plaintiff’s did not pay the surcharge, are not the ultimate recipients, and the surcharge does not direct money away from the coffers of local government.  Therefore, given the limited ministerial and administrative functions performed there is no standing to challenge the surcharge.

Plaintiff, Albarelli, who paid the surcharge, did not have standing because he could not show he had a direct personal interest in the litigation arising from a threatened or actual injury.  He has no personal interest or stake in the outcome of the litigation since the remedy sought must relate to the alleged injury.  The relief Albarelli requested cannot remedy the injury claimed by the payment of a surcharge.  He does not seek a refund or damages for the alleged improper collection of the surcharge.  Nor does Albarelli argue that he would again be subject to the surcharge at sometime in the futureCity of Slater v. State of Missouri, Office of State Courts Administrator, (WD78016, 5/3/16)

Comment Howard: Many a ship has crashed on the shoals of standing.  This case was no exception.  Standing is fundamental but also arcane and abstract which makes it difficult to apply.  Kicking out a case on standing allows a court to otherwise avoid difficult issues, which may seem meritorious or contentious.

Comment Ragan:  At a time when the court system is under pressure  it is troubling the court would permit a charge for the Sheriff’s retirement fund to be placed on municipal charges.  There is no rational relationship between municipal tickets and services being provided for by the Sheriff.


In early afternoon on April 17, 2013, Stacy Biggerstaff (“Defendant”) was stopped at a Missouri Highway Patrol (“MHP”) checkpoint, along with all other motorists traveling Taney County’s Coon Creek Road.  Based on evidence acquired during the stop, Defendant was later found guilty of possession of a controlled substance, driving while intoxicated, and driving while her license was suspended.

Defendant appealed to the Southern District challenging her conviction on the ground that the evidence acquired at the MHP checkpoint violated her right to be free from unlawful search and seizure because: (1) the “checkpoint location was not chosen based on specific data”; (2) “no written procedures were implemented and provided to field personnel”; and (3) “no signs or other warnings were given to drivers about the checkpoint.”

The United States Supreme Court “has implied that equipment or operator license checkpoints may be constitutional if the checkpoints do not allow the officers to have an unconstrained exercise of discretion.  Missouri precedent follows, holding that the “intrusion” must be minimal and delay to travelers must be minimized; that a particular roadblock operation must be conducted by a designed plan, executed under supervisory personnel; and provide more than ample notice to travelers as to the nature of the operation.

The Southern District reviewed the application of the MHP “General Order” and a “Special Order” applicable to this checkpoint determining that the establishment of the checkpoint was specific and satisfied all of the requirements required by earlier Missouri cases.  State of Missouri v. Biggerstaff, (SD34001, 04/15/16)

Comment Howard: This case simply restates existing Missouri law based upon earlier court decisions.  It provides a great jumping off point to determine if a checkpoint policy or practice complies with the law.  The decision goes into detail with respect to the policy and procedures implemented by the MHP with respect to the establishment of checkpoints.  Police departments would do well to review their standard operating procedures to determine if they comply with procedures outlined in this case.


spoon_bridge_and_cherry_MinneapolisThe Minneapolis Park and Recreation Board (the “MPRB”) employed Cynthia Wilson, an African American woman, in various capacities since 1989.  Since 2010, Appellee Jayne Miller has held the position of MPRB superintendent.

On September 13, 2012, the Minnesota Spokesman-Recorder published an article highlighting complaints of racial discrimination within the MPRB.  The article quoted Wilson, who discussed her concerns about racial discrimination.  On December 18, 2012, Wilson attended an open budget meeting for all departments of the MPRB.  The MPRB employees were encouraged to ask questions and make comments about the budget process.  During the meeting, Wilson inquired into whether the MPRB was going to continue to use a certain consultant who had identified specific problems regarding the work environment at the MPRB.  It was agreed by the parties that the above statements by Wilson were protected free speech.

Miller provided negative comments that were included in the 2012 annual performance evaluation of Wilson stating that Wilson “needs improvement” in the areas of communication skills and interpersonal skills, which referenced Wilson’s remarks at the budget meeting.  On December 30, 2012, Wilson emailed MPRB’s Human Resources Manager, complaining that Miller retaliated against her in the annual evaluation for Wilson’s questions during the budget meeting.  After Wilson’s complaint to Human Resources, her performance ratings were amended.  In the category of communications skills, her rating was changed from “needs improvement” to “meets expectations.”  In the areas of decision-making/problem-solving and interpersonal skills, her performance ratings were changed from “meets expectations” to “needs improvement.”  Wilson was marked as “meets expectations” in all other categories and was given an overall rating of “meets expectations.”

Thereafter, Wilson applied for and was passed over for several promotions.  Wilson then filed a complaint in federal district court claiming retaliation for exercising her First Amendment rights under the Civil Rights Act.  Specifically, Wilson alleges that Miller retaliated against her for engaging in activity protected by the First Amendment after the newspaper published her remarks and after Wilson voiced concerns at a budget meeting.  Wilson argued that she was denied three opportunities to advance within the MPRB, when she was not selected for the positions of Deputy Superintendent, Assistant Superintendent of Recreation, or Director of Recreation Centers and Programs.  Wilson asserts that Miller’s negative comments in her 2012 performance evaluation regarding Wilson’s comments at the budget meeting, and hiring managers was a factor in her not getting a promotion.

The MPRB filed a motion for summary judgment, which was sustained because Wilson failed to show that her speech was a substantial or motivating factor in the alleged employment actions.  Wilson appealed the district court’s grant of summary judgment to the Eighth Circuit, which affirmed the trial courts decision

The Eighth Circuit held that a negative performance evaluation was not an adverse employment action, unless the negative evaluation leads to the denial of a promotion and that a reasonable person could find a connection between the protected speech and the retaliatory action.

The Eighth: Circuit reasoned:

“Standing alone, a poor performance rating does not constitute an adverse employment action because it has no tangible effect on the employee’s conditions of employment.”

In this case, Wilson failed to show that the MPRB used the evaluation as a basis to detrimentally alter the terms or conditions of the recipient’s employment. “An unfavorable evaluation is actionable only where the employer subsequently uses the evaluation as a basis to detrimentally alter the terms or conditions of the recipient’s employment.” Wilson v. Miller,  (Eighth Circuit, 15–1415, 04/25/16)


intoxilyzer-8000-2Driver was arrested for driving while intoxicated on May 2, 2014.  Driver consented to submit a breath test on an Intox EC/IR II breath analyzer machine, and the results showed his BAC was .189 percent, more than double the legal limit of .08 percent.  Following an administrative hearing, Director notified Driver that she was suspending his driving privileges.  As a result, Driver filed a petition for trial de novo.

Prior to the de novo hearing the Driver filed a memorandum where he argued the results of the breath test should not be admissible as the language of 19 CSR 25-30.051(5) in effect at the time the maintenance report was conducted required the use of all three compressed ethanol-gas solutions, and that the maintenance report in his case did not comply with these regulations since the breath analyzer was only verified at one level, 0.08 percent.

The trial court sustained Driver’s objection to the foundation of the breath test results and made a specific finding that “and” has relevance in the regulation and the results of the breath test were inadmissible.  The Director appealed to the Eastern District, which reversed the decision.

The breath analyzer used on driver was tested on May 1, 2014 using a single compressed ethanol gas mixture.  Since the breath analyzer used to test the driver was calibrated on May 1, 2014, it is necessary to look to the language of the regulation in effect on that date of the breathalyzer test to determine whether the use of the compressed ethanol gas mixture was in compliance with the regulation.  On February 28, 2014, the DHSS adopted a new regulation that provided:

‘(1) Standards used for the purpose of verifying and calibrating breath analyzers shall consist of standard simulator solutions or compressed ethanol gas standard mixtures.

[. . .]
(5) Compressed ethanol-gas mixtures used to verify and calibrate evidential breath analyzers [. . .] shall have a concentration within five percent (5%) of the following values:

(A) 0.10%; (B) 0.08%; or (C) 0.04%.” [Emphasis Added}

Therefore, the regulations use of the conjunction “or” require only one compressed ethanol gas mixture to be used to calibrate each breath analyzer.  Rundell vs. Director of Revenue, (ED 103112, 04/19/16)



On April 6, 2014, Highway Patrol Trooper Jeffrey Huff stopped Harrell for speeding.  Huff testified that he smelled alcohol and Harrell showed signs of intoxication.  He administered a series of field sobriety tests.  Huff then arrested Harrell for driving while intoxicated and took her to the Clay County Detention Center.  Huff then read Harrell the implied consent law and administered a blood alcohol test, which showed Harrell’s BAC to be .122%.

Harrell was given a written notice of suspension or revocation of her driving privileges because of her arrest on probable cause of driving a motor vehicle with a blood alcohol content (“BAC”) above the legal limit.  Harrell challenged the administrative sanction.  A hearing examiner affirmed the revocation of Harrell’s driving privileges and Harrell filed for a trial de novo.

At the de novo trial, Harrell challenged the admission of the BAC report on the grounds that there was insufficient foundation.  Harrell argued that, because the trial was being held in 2015, the Director was required to show that the simulator used to test the Datamaster had been certified against a NIST thermometer in 2014, which it was not.  In other words, Missouri regulations required up-to-date yearly certification records for a simulator at the time of trial, regardless of when the simulator was used to calibrate a breath analyzer or when the applicable test was taken.  The trial court agreed, finding that the lack of a 2014 test of the Simulator against a NIST traceable reference thermometer and the fact the maintenance tickets of the calibration tests of the Datamaster were illegible made the test results inadmissible.  The trial court set aside the revocation of Harrell’s driving privileges and the State appealed to the Western District.

The Western District noted that precedent required compliance with the testing of the machine at the time the breath test in question was administered. “While the language of 19 CSR 25-30.51(4) does require annual certification of the Simulator, the foundational requirements for the admissibility of a BAC test result must have been met at the time of the test in question was administered.”

The Western District deemed the test admissible but reasoned that the accuracy of Harrell’s BAC test can be challenged, based on the question of reliability (burden of persuasion) and not admissibility.   A factual determination must be made by the trial court as to whether or not the test results are “credible or reliable” considering the discontinued use of the Simulator and lack of subsequent certification.

With respect to admissibility of the results of the BAC test on the grounds that they were illegible the Western District noted that the title to the Report showed that it was a “BAC DataMaster Evidence Ticket” and that it was signed although the results printed by the machine were illegible.  The Western District held that nothing in the regulations speaks to the “state of the attached diagnostic test.” “The Datamaster Maintenance Report, to which the printouts were attached, clearly shows the results of the tests performed and each test was within accepted parameters.” “A claim that the blood test results are invalid will only succeed if there is some evidence that a malfunction occurred.” Harrell v. Director of Revenue, (WD78670, 05/03/16)

 Internships for SLU Scholars Program

Slu_lawThis summer, the St. Louis University School of Law will host the  Pre-Law Undergraduate Scholars Program.  The program aims to recognize and reward students for their demonstrated interest in community service and social justice and tries to provide them the best opportunity to successfully enter the legal profession.  SLU is currently identifying attorneys interested in monitoring one of the participants in the program.  If you are interested you may obtain additional information by clicking here or by contacting Lisa Sonia Taylor, Director, Multicultural Affairs and Outreach, (314) 977-4571,  It would seem that local government has a role to play by encouraging students to consider the impact of local government law on community service and social justice.