September Newsletter (Issue 09-2018)

Plaintiff’s Cannot Claim Attorneys Fees Under State Justification Defense Law For Defending Ordinance Violation In Municipal Court

Question: This case presents an important and unusual question of first impression concerning whether or not a defendant in municipal court charged with and ordinance violation is entitled to“attorney’s fees, court costs, and all reasonable expenses” under Section 563.074., known as the Missouri justification laws, for having to defend a claim where force is used as described in Sections 563.031, 563.041, 563.046, 563.051, 563.056 and 563.061.

Facts and Procedure: In April 2013, King visited a bowling alley in Crestwood (City), a municipality located in St. Louis County.  At closing time, several inebriated patrons became rowdy, and a fight involving two people ensued.  King intervened, stopping the fight by drawing a gun.  When police arrived, they brought the situation under control but made no arrests.

Several months later, the City filed an amended information in the Municipal Court of Crestwood, Missouri.  It charged King with violating the City’s disorderly conduct ordinance, and stated, “Upon information and belief, Defendant inserted himself into the altercation and, at some point, drew his firearm.  Upon information and belief, Defendant pointed his firearm at [one of the combatants].”  King filed an answer in which he pleaded not guilty and, relying on Section 563.074, asserted the affirmative defense of justification for attorney’s fees, court costs, in all reasonable expenses under state justification law.

Section 563.074 states:

  1. Notwithstanding the provisions of Section 563.016, a person who uses force as described in sections 563.031, 563.041, 563.046, 563.051, 563.056, and 563.061 is justified in using such force and such fact shall be an absolute defense to criminal prosecution or civil liability.
  2.  The court shall award attorney’s fees, court costs, and all reasonable expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant has an absolute defense as provided in subsection 1 of this section.

The municipal court judge subsequently held that the court did not have jurisdiction over King’s petition for the attorneys fees, court cost, and reasonable expenses under Section 563.074.2 incurred in mounting his justification defense.  In reaching this conclusion, the court considered the status over the municipal court as a division of the circuit court and that their jurisdiction is limited to ordinance violations.

Instead of appealing the decision of the municipal court within the state court system, King filed a case in federal court alleging that the City and Judge Newsham, in his official capacity, violated his federal due process rights by not granting him attorney’s fees, costs, and expenses available under Section 563.074.2.  King further alleged that Judge Newsham’s order “establish[ed] a policy of ‘no jurisdiction’ to award costs and attorney fees under Missouri ‘Justification’ statutes” and sought the costs and fees that he requested from the municipal court, $250,000 in damages, and a declaration that the “policy” is “unconstitutional and void.”  King asked for damages jointly and severally with Crestwood.

The defendants moved to dismiss arguing that: (1) the district court lacked subject matter jurisdiction under the Rooker-Feldman doctrine; (2) the municipal judge’s order was not a statement of policy of the City of Crestwood; (3) the claim against Judge Newsham is redundant to the claim against the city; (4) Eleventh Amendment and judicial immunity barred the suit; and (5) King failed to state a claim upon which relief may be granted.  King prays Judgment of damages from Judge Newsham, jointly and severally with Crestwood.

The district court granted the motion to dismiss on the basis that King had failed to identify a municipal policy noting that § 1983 liability only attaches to a municipality if a “violation resulted from (1) an official municipal policy, (2) an unofficial custom, or (3) a deliberately indifferent failure to train or supervise.”  It then determined that “[t]he only basis for municipal liability alleged by Plaintiff here is that Judge Newsham’s actions in Plaintiff’s municipal case established an official policy of the City.”  However, a “municipal judge’s ‘judicial decision made in a case that came before [him] on a court docket’ is ‘not a final policy decision of a type creating municipal liability under § 1983.'”

Opinion: Relying upon the reasoning in Granda, an earlier Eighth Circuit opinion that the municipal court is a division of Missouri state court system subject to review within that system the Eighth Circuit concluded that the judge’s action in that case was a traditional decision, not a policy decision of the city even though the St. Louis Mayor appointed the judge and the judge made periodic reports to the city.  In this case, which is similar to Granda,  in all material respects, the order challenged is the judicial order and not a final policy decision of the type creating municipal liability under Section 1983.  Missouri Rules governing Municipal Court prosecution specifically provides that a defendant may appeal the decision of the municipal court seeking de novo review in the Circuit Court.  In addition, the complained conduct was not a custom or practice since there was a meaningful post depravation remedy for any loss by appealing to the circuit court requesting de novo review.  King v. City of Crestwood, (8th., Cir, 16–4560, 08/13/18)

Comment Howard: If the Defendants argument had prevailed it would have had extremely wide-ranging implications for local government.  The opinion by the Eighth Circuit is very crisp and well reasoned based upon existing principles of municipal law and the organization of the Missouri court system.  It is well worth the read.  It also seems to me that subsection 2 of the state justification law that provides for attorneys fees, cost and other reasonable expenses applies only to civil matters when you read the statute in its entirety.  While municipal court proceedings can be civil nature it seems that charges in this case might fall under the analysis that it is like a criminal charge. This case was extremely well funded, presumably by gun rights advocates who want to advance justifications for using guns by making persons who bring lawsuits unable to afford the potential legal costs.  The application of the justification law to Municipal Court violations is not, at least in my mind, consistent with the intent of the law.  The first subsection of 563.074.1 makes it clear that use of force is an absolute defense to criminal prosecution or civil liability.  Nevertheless the second section of 563.061.2 provides for an award of attorney’s fees only in defense “of any civil action.”

You may also want to look at the discussion in Webb v. City of Maplewood in the June 2018 edition of the MMAA newsletter involving bail policy and my comments concerning the analysis in the Maplewoodcase.

It would seem that the Crestwood case just decided by the Eighth Circuit provides the proper analysis for the eventual outcome of the Maplewood case, unless the plaintiffs in the Maplewood case can show a connection between the municipal court policy and other city officials who actually determined the bail policy.

Handicapped Person Not Required To Risk Injury By Using Defective Wheelchair Ramp To Show “Injury In Fact”

Facts and Procedure: Hillesheim is paralyzed from the waist down and uses a wheelchair for mobility.  When Hillesheim visited a Holiday store in Mankato, Minnesota, he observed that the store’s two handicap-accessible parking spaces were not marked with vertical signposts.  One of the spaces also lacked an adjacent access aisle, which provides extra room for individuals with disabilities to move in and out of their vehicles.  Also present was a garbage can near the top of the curb ramp leading into the store.  Hillesheim claims that he could not have safely navigated the ramp in his wheelchair, so instead of risking injury, he decided not to enter the store.

Holiday inspected the parking lot and fixed the alleged defects.  He removed the handicap-accessible space lacking an access aisle because it determined that the Americans with Disabilities Act (“ADA”) only required it to have one space, not two, given the size of the parking lot.  It also placed an ADA-compliant vertical sign above the remaining space and removed the garbage can from the curb ramp out of an “abundance of care.”

Before Holiday made these changes Hillesheim had already filed a lawsuit in state court, alleging violations of the ADA and the Minnesota Human Rights Act (“MHRA”). Holiday removed the case to federal court.  After the close of discovery, Holiday filed a motion for summary judgment in which it asked the district court to dismiss the case for lack of subject-matter jurisdiction.  Hillesheim conceded that Holiday’s remedial measures, completed after Holiday removed the case to federal court, had mooted his federal ADA claims; however he did not budge on his MHRA claims arguing that he had standing to assert them because the lack of access to the store had injured him.

The district court granted Holiday’s motion for summary judgment.  In addition to dismissing Hillesheim’s ADA claims, the court dismissed Hillesheim’s MHRA state claims with prejudice rather than remanding them to state court.  On appeal to the Eighth Circuit, Hillesheim challenged the court’s treatment of his MHRA claims.

Opinion: Hillesheim argued that he had suffered an “injury in fact,” which was traceable to the challenged conduct that was likely to be redressed by a favorable judicial decision.  With respect to the injury in fact, Hillesheim failed to show in his motion for summary judgment that the alleged parking lot defects caused him injury. The facts showed that the access aisle and vertical sign claims did little more than describe the alleged violations.  He failed to explain whether the alleged defects caused him to leave without entering the store relying on his allegations in his petition. Therefore, the parking lot claims were dismissed because they did not show injury in fact and were therefore insufficient to establish Article III standing, which requires that the plaintiff show he was damaged.  Since the parking lot defects were corrected by Holiday they were moot.  However, the dismissal of the MHRA claims with prejudice by the district court was improper under federal rules since they should have been simply remanded to the state court.

With respect to the ADA garbage-can claimHillesheim stated sufficient facts in his response to the motion for summary judgment that he suffered an injury because he alleged that the placement of the garbage can left only a narrow and dangerously slow path up the ramp and Defendants photograph did not disprove his claim.  The Eighth Circuit remanded to the district court to determine on remand whether it wished to exercise its discretion under the supplemental jurisdiction statute since only one claim federal claim remained.  Hillesheimv. Holiday Stationstores, Inc. (8thCir., 17 – 3143, 08/17/18)

Comment Howard: Recently we have seen more cases involving the failure to properly install or maintain ADA handicap facilities.  The best course of action for property owners is to immediately fix the defects in order to moot the claim as happened, in large part, in this case.  Obviously, claimant’s wants to be able to claim attorneys fees, therefore careful review of the claim should be conducted to be sure that there was an injury in fact because if there was no injury in fact the claim will not lie in federal court and may be relegated to state court.

Prisons Are Not Places Of Public Accommodation Under The Missouri Human Rights Act

Facts and Procedure: Naugles was an inmate at, a prison facility operated by the Department of Corrections (Department).  He is a wheelchair-bound paraplegic, who had both of his feet amputated while he was incarcerated.  Naugles’ filed a complaint with the Commission on Human Rights (Commission), alleging that the Department was discriminating against him on the basis of his disability by failing to provide handicap-accessible facilities at the prison.  He alleged that the Correctional Center lacks handicap-accessible facilities for dining, worship, recreation, and education, and that he has accordingly been confined to the hospital wing of the facility, where he does not have access to the full range of services offered to able-bodied inmates.

The Commission refused to investigate the complaint on the grounds call that the Missouri Human Rights Act (Act) does not cover prison facilities.  Naugles then filed a petition for a writ of mandamus in Circuit Court to force the Commission to investigate his complaint.  The court denied the writ, finding that the Commission lacked statutory authority over Naugles’ claim because prisons and are not “places of public accommodation” within the meaning of the Act.  Naugles appealed to the Western District.

Opinion: The Act prohibits discrimination in “places of public accommodations.”  It makes it unlawful to discriminate against a person because of a disability against  “…any person, directly or indirectly, to refuse, withhold from or deny any other person, or to attempt to refuse, withhold from or deny any other person, any of the accommodations, advantages, facilities, services, or privileges made available in any place of public accommodation….”

The Western District, noted that while Missouri prisons plainly constitute “facilit[ies] . . . operated . . . by or on behalf of this state or any agency or subdivision thereof” there is also a provision that provides that the prohibition on public accommodation discrimination does “…not apply to a private club, a place of accommodation owned by or operated on behalf of a religious corporation, association or society, or other establishment which is not in fact open to the public . . ..”  The question before the court was whether or not a prison constituted a public facility that was “open to the Public.”

The Western District relied upon earlier non-prison Missouri cases as to what constituted a facility open to the public and similar federal cases.  Specifically, the Department does not invite the public or any trade in any meaningful sense into the prison.  A Missouri statute specifically provide that  “no person shall be permitted to enter a correctional center except by special permission of the chief administrative officer of the facility, the division director, the department director or under such regulations as they shall prescribe.”  In addition, the court viewed a prison as the antithesis of a “place of public accommodation” because it was designed to separate and isolate offenders from the public; therefor the Western District affirmed the decision by the trial court.  State of Missouri, ex rel. Naugles. v. Missouri Commission On Human Rights, (WD81135, 08/21/18)

Filing of BAC Maintenance Report Is Directory

Facts and Procedure: Roam was arrested for driving while intoxicated after a traffic stop during which he performed poorly on field sobriety tests.  He admitted consuming alcohol and displayed indicia of intoxication.  After being transported to the police station, Roam agreed to provide a breath sample on an EC/IR II breath analyzer, the results of which showed that his blood alcohol content (“BAC”) was .113 percent, well over the legal limit of .08 percent.

At the beginning of trial, the Director offered into evidence the BAC results, which the trial court admitted on condition that a proper foundation was laid.  The arresting officer testified about all the steps he took prior to administering the breath test to Roam and about the maintenance check he had performed on the breath analyzer a few weeks prior to the test, which showed the machine was working properly at the relevant time.  Counsel for Roam stated he did not have an objection to the maintenance check, and the maintenance report was admitted without objection.  The officer then testified that he could not recall filing a copy of the maintenance report with the Department of Health and Senior Services (“DHSS”), which he admitted should have done according to DHSS regulations.  When the court asked counsel for Roam what he thought about the officer’s failure to file the maintenance report issue, counsel said “I’m going to let that go, Judge.  I’m not waiving it if I were ever to appeal.”

The court then found, based on the officer’s demeanor, that the officer had not filed the maintenance report with DHSS.  It concluded there was not absolute and literal compliance with 19 CSR 25-30.031(3) and sustained the objection to the admission of the BAC results.  The trial court held that the Director had not satisfied its burden and ordered that Roam’s driving privileges be reinstated.  The Director appealed to the Eastern District.

Opinion: The court, citing current case law, noting that the purpose of filing the maintenance report with DHSS is a procedural requirement that is only directory; therefore, it does not affect the actual performance or validity of the test itself or the admissibility of the evidence.  There was no challenge to the propriety of the maintenance check itself and a copy of the maintenance report was submitted without objection at trial.  Therefore, the failure to file a copy of the maintenance report did not affect the admissibility of the maintenance report.  The trial court judgment was reversed.  Roam vs. Dir. of Revenue, (ED 106142, 08/14/18)

Painting Step Yellow Was Not Sufficient To Correct Dangerous Condition

 Facts and Procedure: Rhodes was injured when she tripped and fell over a step, which was painted yellow at the entrance to a store operated by Kandlbinder.  Rhodes filed suit against Kandlbinder alleging premises liability and negligence per se theories of recovery.

Kandlbinder, the Defendant, argued that it had not failed to use ordinary care in failing to remove the step, because it took measures that it felt were “reasonable” in the circumstances, i.e. painting the step yellow.  Conversely, Rhodes argued that the presence of the step at the front door rendered Kandlbinder’s convenience store not reasonably safe, and Kandlbinder failed to use ordinary care in failing to remove the step.

There was testimony from former and current employees regarding falls that either did not result in injury or were not reported to management.  Current and former employees testified that prior to the fall in this case, people would frequently catch their foot on the step and stumble even though the step was painted yellow.  A former employee, testified that during her time as an employee at the store, it was a “daily occurrence” that someone would stub his or her toe on the step leading into the store.  All sorts of expert witnesses also testified that the step was dangerous and that the yellow paint was not sufficient to warn customers of the danger.

A jury returned a net verdict of $480,000, after the application of the 20% fault attributed to Roads.  The Defendant filed a motion for new trial arguing that the trial court erred in giving Instruction No.7, which stated that the Defendant’s failure to remove the step was not reasonable under the circumstances and that the court should have instead instructed the jury that the Defendant did not fail to use ordinary care by failing to remove the step, because it took measures that were reasonable, in the circumstances, by painting the step yellow.  The trial court overruled Defendant’s motion for new trial and thereafter Defendant appealed to the Eastern District.

Opinion: When examining whether there was substantial evidence to support the submission of an instruction, the Court is to only consider the evidence supporting the submission and disregard all other evidence.  In this case, there was substantial evidence for the jury to find that Kandlbinder failed to use ordinary care in removing the step.  Specifically, two witnesses who were customers, and a former employee, who tripped over the yellow step, were injured, testified that they never saw the yellow step before their fall, which was painted yellow at the time of their injuries.

Rhodeses’ theory of recovery was that the step, despite being painted yellow, was a dangerous condition that required removal.  Missouri law provides that “[a] plaintiff is entitled to choose the theory of recovery on which to submit his case to the jury as long as there is sufficient evidence to support him.”

MAI 22.03 provides three options that can be used: “remove it,” “barricade it,” or “warn of it.”  The “notes on use” regarding MAI 22.03 clearly provide that “[i]f more than one phrase is used, they must be submitted in the disjunctive.”  Missouri law states that when issues are submitted in the disjunctive, “each alternative claim of negligence must be able to stand alone and there must be sufficient evidence to support each allegation.  In determining whether the instruction is supported by substantial evidence, this Court must consider the evidence in the light most favorable to the plaintiff and disregard the defendant’s evidence unless it tends to support the submission of the instruction.  Judgment affirmed.  Rhodes v. Kangbinder, Inc., (ED 106104, 08/14/18)

Comment Howard: This case is a good example, where a warning, like painting the stair yellow, was insufficient to correct the dangerous condition because even after the stair was painted yellow there were additional falls.  If you are looking for a good discussion of MAI verdict directors with respect to premise liability for a dangerous condition you may want to review this case because it has an excellent discussion of the options in submitting a verdict director for a dangerous condition.

In Wrongful Death Action Police Officer Entitled To Qualified Immunity Even Though Person Who Was Charging The Officer Was Unarmed

Background: Qualified immunity is the most important defense that a law enforcement officer has against personal liability under Section 1983.  Qualified immunity shields a law enforcement officer from liability unless: “unless (1) the evidence, viewed in the light most favorable to the plaintiff, establishes a violation of a constitutional or statutory right, and (2) the right was clearly established at the time of the violation.”  Reflecting the importance of this defense, a trial court’s ruling that a police officer is not entitled to qualified immunity is subject to immediate appeal.

Facts and Procedure: In Wenzel v. City of Bourbon, police officer Storm, an employee of the City of Bourbon (City), used deadly force against Gary Wenzel, who was charging him while officer Storm was trying to make an arrest.  Relatives of Wenzel filed a 1983 lawsuit against officer Storm, claiming that his use of deadly force was unreasonable under the circumstances. The trial court denied officer Storm’s motion for summary judgment requesting qualified immunity, which was immediately appealed to the Eighth Circuit.

 Officer Storm, while on patrol in Bourbon, observed the vehicle Wenzel was driving, having been notified by other police officers that Wetzel’s vehicle did not have proper license tags.  Officer Storm turned around to determine if the vehicle had proper license tags putting on his lights and siren.  Wenzel fled and Storm pursued him which resulted in a chase on a cold winter day when there were patches of snow on the ground, creating a driving hazard, especially to oncoming motorist.

When Wetzel’s car crashed in a ditch Storm stopped his car a few car lengths from Wenzel’s and exited with his firearm drawn.  Wenzel also exited his vehicle charging towards Storm while exhibiting an angry visage that was in keeping with the reputation he had earned during his earlier interactions with law enforcement officers. Prior to this incident, Storm was made well aware of Wenzel’s propensity towards violence by fellow police officers, citizens and relatives of Wenzel.  Storm had a scant three seconds to observe Wenzel’s charging, which was captured on the vehicle recorder showing that Wenzel was mad, aggressive, and moving his arms in a menacing way with the palms of his hands facing backwards.  Storm did not see any weapon in Wenzel’s hands.

Opinion: The Eighth Circuit overruled the trial court decision denying Storm’s motion for summary judgment on the issue of qualified immunity, concluding that it was reasonable for Storm to believe that Wenzel posed an immediate threat of serious physical harm to him, notwithstanding the fact that Storm could see that Wenzel’s hands were empty and the later-discovered fact that Wenzel was unarmed.  For the purpose of it’s ruling the Eighth Circuit assumed that Wenzel was unarmed, when he charged Storm.  “Even if a suspect is ultimately ‘found to be unarmed, a police officer can still employ deadly force if objectively reasonable.’” The Eighth Circuit rejected Plaintiff’s contention that it was unreasonable for Storm to use deadly force because Storm had less than three seconds to holster his firearm and remove his baton or Mace to protect himself from and the charging Wenzel.

The use of force is not judged “with the 20/20 vision of hindsight,” and makes “allowance for the fact that police officers are often forced to make split-second judgments, in circumstances that are tense, uncertain, and rapidly evolving, about the amount of force that is necessary in a particular situation.”  A reasonable officer on the scene would have viewed Wenzel’s indisputably aggressive approach as a precursor to a physical altercation.  Storm was required to make a split-second decision in unpredictable and dangerous circumstances, and he was not constitutionally required to attempt to re-holster his firearm, grab his baton or pepper spray canister, and do battle with the fast-approaching, known-to-be-confrontational Wenzel.  Wenzel v. City of Bourbon, (8thCir., 17–2028, 08/09/18).

Comment Howard: I think this case is pretty unusual because the Court of Appeals reversed the trial court on what would seem to be basically a fact question. This case illustrates the value of recording the officer’s actions and the actions of persons being arrested because without the recording showing the demeanor of Wenzel the Court of Appeals would have had to rely upon the district courts conclusions.  Seems like the court completely refuted the argument that the officer was not acting reasonably under the circumstances.  This is a second case in recent months that I have seen where the appellate court could make its own decision with respect to whether or not the officer was acting reasonably under the circumstances based on its own independent review of a video.  Keep recording!  There is an extensive and well-written article on qualified immunity in the September-October 2018 issue of Municipal Lawyer, which you should have just received.

St. Louis Revises Code Inspection (Project 87) Program To Require Particular Suspicion

 In February 2018, the Eighth Circuit held that the building inspector for the City of St. Louis was entitled to qualified immunity in the case of Estate of Walker v. Wallace and remanded the case to the district court for further proceedings.  See the March 2018, MMAA newsletter discussing Estate of Walker v. Wallace

In the Walker case, the police obtained a lawful search warrant based on information obtained from several reliable sources about drugs on the property and alleged suspicious drug activities.  In the Walker case and other Project 87 actions the police department conduct a full-scale SWAT team action using battering rams, noise/diversionary devices, and overwhelming members of SWAT team members.  In the Walker case they found marijuana, drug paraphernalia, and firearms in the house but did not identify any particular code violation.  In fact, the code violations were insufficient to condemn the building.

Recently, the Walker case was brought to closure.  The September 3, 2018, edition of Missouri Lawyers Weekly has an excellent article on Project 87, a code enforcement program of the City of St. Louis.  Under Project 87, the St. Louis police when effectuating a search warrant immediately notifies a building inspector of properties that constitute a “nuisance,” which is defined as a code violation that “if not promptly corrected will constitute a fire hazard or a serious threat to the life, health or safety of the occupants of the building, structure, or portion thereof in which the violations occur.”  If the owner or occupant of the building refuses to permit a building inspection, the building inspector must immediately condemn the building and issue an order to vacate, and if the owners or occupants refuse to leave, the police must immediately remove them (This part of the policy was later revised upon settlement of the case.) The detective testified that it was police-department policy to request a Project 87 inspection routinely, after a search warrant was executed but did not always identify any particularized building code violation.

The settlement of the matter resulted in agreed to changes to Project 87 policies, which require the City to have a particularized suspicion of a condition or defect within a building that constitute an immediate fire hazard or threat to life, health, or safety of any occupant in order to proceed under Project 87.  Under the settlement the City is required to refrain from conducting condemnations without reasonable cause.  All parties seem to be happy with the settlement with the City noting that it provided an opportunity for the City to tweak its policy making the policy better.

Comment Howard: I assume the theory behind the policy is that if a city official lawfully observes a code violation that  “if not promptly corrected will constitute a fire hazard or a serious threat to the life, health or safety of the occupants of the building, structure, or portion thereof in which the violations occur” the city official notifies the building inspector who immediately condemns the building as unfit for occupancy following proper procedures.  I assume that a Program 87 policy for most cities may not be practical but still there is a need to be concerned about dangerous buildings and the impact on neighborhoods.  Seems like a program based on Project 87 policies might drive home the point that drug houses will not be tolerated by making it clear to landlords that the allowing the use of their dilapidated property has consequences.