December Newsletter (Issue 12-2019)

Police Officer Can Make  Warrantless Arrest Based Upon Reasonable Suspicion
Police officer was justified in stopping Soto-Garica’s car, because he was directed to do so by a detective, who witnessed Soto-Garcia distribute methamphetamine from the car earlier that day.  In this case, police had reasonable suspicion, grounded in specific and articulable facts, that Soto-Garica was involved in a completed felony.  Therefore, police may initiate a stop pursuant to Terry v. Ohio, having witnessed Soto-Garcia distribute methamphetamine from the car earlier that day.

The Eighth Circuit also concluded that the officer was justified in stopping Soto-Garica’s car because  another officer witnessed the distribution of methamphetamine from the car earlier that day and shared that information with the arresting officer. Citing United States v. Hensley the 8th Circuit noted that probable cause may be based on officers’ collective knowledge and need not be based solely on information within the arresting officer’s knowledge, so long as there is some degree of communication between officers. U. S. v. Soto-Garica,  (8th. Cir. 18-2244, 11/22/19)

Comment Howard:  The opinion in Soto-Garica, meshes  with an outstanding discussion of warrantless arrests the November–December 2019 Journal of the Missouri bar, Volume 75, written by Brian Malone.  This article  is  exceptional  with some  62 endnotes.   This article covers the entire waterfront on this topic in detail providing an excellent reference as part of your municipal law library or as a reference, to be used by  law enforcement officers.

General Election Laws Apply To CID Election Challenges
Facts and Procedure
The Business Loop Community Improvement District (“District”) is located in  Columbia, Missouri.   It is a political subdivision of the State of Missouri, organized under the Community Improvement District Act (“CID Act”).  The  City approved the creation of the District, which  is governed by a board of directors.  At the Board’s first business meeting, the directors agreed to seek voter approval of a half-cent sales tax to be imposed by businesses in the District and to conduct the sales tax election itself rather than through the County election authority.  The District announced on its website that the sales tax election would be held on December 10, 2015, and sent mail-in ballots to qualified voters.  Voters were instructed to return the completed ballot by December 10, 2015, and that they could do so by mailing or hand-delivering the ballot to the District’s office.  Voters were required to print and sign their names and include their addresses on the ballot itself.  The District hired four election judges to observe the counting of the ballots; two were affiliated with the Democratic Party and two were affiliated with the Republican Party.

Prior to and at the time of the election, Henderson was a registered voter living within the District’s boundaries.  At approximately 2:00 p.m. on December 10th, Henderson and another registered voter went to the District’s office to cast their ballots. Respondent Gartner greeted them and retrieved an unsecured file box from behind a wall that separated the District’s office lobby from other parts of the office.  Gartner opened the box’s lid and invited them to drop their ballots into the box, which they did. Approximately six hours later, District officials announced that the sales tax had passed by a vote of 4 to 3.  Henderson was one of the three individuals who had voted against the sales tax.

On January 8, 2016, Henderson filed a two-count petition against the District, Gartner, and May.  In Count I, Henderson alleged that the District’s election failed to comply with the Missouri Constitution in four respects: (1) lack of a secret ballot; (2) lack of a secured ballot box; (3) lack of sufficient notice of the election; and (4) lack of a neutral administrator.  Henderson alleged that these “Constitutional irregularities” were of “sufficient magnitude to cast doubt on the validity of the election,” justifying a new election pursuant to Section 115.593.6.  Henderson requested that the trial court issue an order commanding that the District fix these deficiencies in “any subsequent election.”

In Count II, Henderson sought a judgment from the trial court declaring: (1) the District’s election was void because of the irregularities described in Count I; (2) no sales tax may be collected as a result of the election; (3) the District and its officials knowingly, purposefully, and intentionally conducted an irregular election that did not comply with Missouri law; (4) to the extent that Section 67.1541 authorizes the election to be conducted as it was, the statute is unconstitutional as applied to the facts of this case; and (5) Henderson is entitled to recover her costs and attorneys’ fees.  Respondents filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction, in which they asserted that “[b]ecause there is no statutory authority for a challenge to a CID sales tax election, [Henderson’s] Verified Petition must be dismissed in its entirety.”  In response, Henderson asserted that the trial court was authorized to hear her challenge under Section 115.575.2, which provides that “[a]ll contested elections on any office or question . . . shall be heard and determined by the circuit court of any circuit, selected by the contestant, in which all or any part of the election was held and in which any alleged irregularity occurred.”

The trial court heard arguments on the motion and granted Respondents Motion to Dismiss, but did not denominate its entry as a judgment.  After filing a motion to correct the entry, which was denied Henderson appealed to the Missouri Supreme Court, which determined that since all issues were resolved the docket entry was a final judgment.  Henderson then filed a motion with the trial court requesting the dismissal order be denominated a “judgment” so as to permit an appeal to be filed, which was denied.  Ultimately, the Missouri Supreme Court issued a permanent writ of mandamus directing the trial court to sign and file a judgment, denominated as such, disposing of Henderson’s claims.  In accordance with the Missouri Supreme Court’s directive, the trial court issued a signed judgment, the substance of which was identical to the 2016 dismissal order.  An appeal  to the Western District followed.

Issues: Henderson asserted that the trial court erred in determining that it lacked subject matter jurisdiction to hear her claims and in dismissing her petition on that basis and in dismissing her petition because she was authorized by statute to contest the District’s sales tax election.

Mootness: Respondents argued  that Henderson’s “challenge to the election is now moot because the sales tax election occurred, the District’s voters approved the sales tax, the sales tax has been collected since April 2016 and [Henderson] is no longer a registered voter residing within the geographic boundaries of the District.”

The Court noted, that the general rule is when an event occurs, which  makes a court’s decision unnecessary or makes granting effectual relief by the court impossible, the case is moot and generally should be dismissed.  This rule, as noted by the Court did not moot the case election even though the tax has been imposed because Missouri law specifically provides that in the case of a pending election contest or question, the question  shall be deemed approved or disapproved as shown by the official returns of the election until the contest is decided; therefore, based upon statute and case law the issue was not mooted by the election approving the tax and its subsequent levy.

It was also undisputed that Henderson was a qualified voter in the sales tax election she now challenges, and if her challenge is successful, the trial court can order the relief she seeks in her petition (a declaration that the election in which she exercised her rights as a voter is invalid and that no sales tax may be collected as a result of the election); therefore, Henderson’s relocation outside the District does not render it unnecessary or impossible for the trial court to grant this relief.

Furthermore, the Court concluded that even if Henderson lived outside the District she would have standing because she might pay sales taxes in the District because Missouri broadly defines standing  to include taxpayer challenges to laws based upon payment of taxes or the possibility of paying taxes (in this case there was no showing that Henderson paid taxes).

Statutory Authority for Election  Challenge –  Henderson also asserted that she had a statutory right to contest the District’s sales tax election and that the trial court erred in dismissing her petition on the basis that it lacked authority to hear the challenge. The Court noted that the CID statute did not provide for an election contest; however, chapter 115 clearly provides authorization for election challenges.  The District was by law a political subdivision and Chapter 115 specifically provides that it applies to all public elections in the state except where ownership of property is required for voting, which was not an issue in this case.

Respondents further argued that Missouri general election laws in Chapter 115 are inapplicable to CID sales tax elections based on subsection 10 of Section 67.1545, which provides that “[n]otwithstanding the provisions of chapter 115, an election for a district sales and use tax under this section shall be conducted in accordance with the provisions of this section.”  The Court ruled that without more the word “notwithstanding” was insufficient to limit the application of general laws (like election laws and challenges to special elections).

Again, Missouri’s general election laws clearly authorized election challenges to  the CID.  The tax election was a public election, and property ownership was not a prerequisite to vote in the election.  Rather, “qualified voters” were “persons who reside[d] within the district and who [were] are qualified to vote pursuant to Chapter 115.  Henderson v.  Business Loop Community Improvement District,  (WD 82596, 11/26/19)

Comment Howard: This case has broad implications with respect to challenges to  special districts that impose taxes.  Unless the authorizing statute for the district specifically excludes  challenges to elections, the general election statutes apply. Furthermore, even if the authorizing statute did not allow election challenges this case raises the question of constitutionality of any such limitation.  A taxpayer almost always has standing to bring a lawsuit to challenge a sales tax because the Missouri Supreme Court has held that persons who pay taxes generally have standing  to challenge the imposition of taxes.

One of the interesting  statutory construction questions that came up in this case was the meaning of the word “notwithstanding” in the CID statute.  As  local government lawyers,  who draft legislation, we recognize that this is a very common word that we use in drafting local laws.  As noted above, the court ruled that without more the word “notwithstanding” was not sufficient to limit the application of the general election laws.

It seems to me that it  might far better to have the County election authority to conduct the election because they are familiar with the details of election laws.  In addition,  it seems clear that the  CID authority is put up a lot of frivolous roadblocks to this lawsuit.

Mandamus Lies To Require County Commission To Appropriate Funds For Essential Services
Introduction: In State of Missouri Ex Rel., Vescovo v. Clay County, the Western District,  seriously stretched  the rules with respect to when a writ of mandamus will issue.   Normally, a writ of mandamus will issue only for  a nondiscretionary act.  The Clay County case, in a first,  bent this hard and fast rule, testing the  outer limits of when a writ of mandamus can be issued by requiring the County to appropriate funds to operate the Sheriff’s office.  The Western District recognized that mandating the county appropriate approximately  $1,000,000 of additional funds was usually a non-discretionary act; nevertheless, the Statutory requirements of the County Budget Law and the extraordinary circumstances and actions of the County Commission in this case justified the Western District  making an exception to the rule because the Clay County Commissioner violated their good faith obligation to adopt a budget to adequately fund the jail in accordance with law.  This case was a knockdown, drag out, nasty lawsuit, the likes of which I have not seen.

 Facts and Procedure: The nastiness was apparently triggered when Vescovo, the  Clay County Sheriff,  began investigating a report of the possible alteration  of official documents by the County staff.  Sheriff Vescovo received a report from the County Clerk that a number of official documents, specifically financial warrants, had signatures of the County Commissioners cut out of them.  His initial investigation led him to believe that individuals in the County’s  Chief Budget Office, were responsible.  Rather than continue his own investigation the Sheriff contacted the Missouri Highway Patrol who took over the investigation, leading to the indictment of several county employees including Portwood, the Chief Budgeting Officer for the County, who later entered into a deferred prosecution agreement.  As we will see, this investigation led to a series of actions by Clay County to reduce the proposed 2019 operating budget for the Sheriff, apparently in retaliation for starting the investigation.

Some background concerning the organizational structure of the County as it relates to the Sheriff’s office is useful.  Clay County is a first class county under state law and is a political subdivision of the State of Missouri subject to state law with respect to procedures for adopting a budget.  The Clay County Commission is the governing authority of Clay County, and it is comprised of three elected commissioners.  Sheriff Vescovo is a separately elected public official in Clay County who has many legal duties, largely prescribed by statute, which include the duty to be the “jailer” for Clay County.   As jailer, he is responsible for the custody and humane care of all inmates and prisoners.  He is also charged with keeping the peace, patrolling and policing county roads and highways, committing offenders to jail and  enforcing public safety laws.

Although  the Sheriff of Clay County is a separately elected official, who presides over a separate office and department, his budget is explicitly set and controlled by the Clay County Commission, pursuant to state law.  As part of the budgeting process, Sheriff Vescovo’s office, along with other county departments, presented a proposed department budget to the County’s Chief Budget Officer, Laurene Portwood. Portwood then compiled and presented the various proposed budgets to the Commissioners as a proposed budget for the county as a whole, who adjusted the amounts, as deemed necessary, in light of the needs of the County.

The Sheriff’s budget included an operating budget, which is separate from the budget used to pay personnel.  The Sheriff’s operating budget for the years 2016 and 2017 was approximately $2.5 million.  His operating budget in 2018, which was cut, was $2.1 million.  In 2019, he requested $3.1 million.  The proposed operating budget was based on estimated expenditures calculated in part from historical information regarding prior years’ actual expenditures.  Throughout these years, the County’s revenues increased each year.  A sizable portion of the Sheriff’s proposed operating budget for 2019 was for operation of the county jail, including monies to fulfill contractual obligations with vendors providing inmate food, healthcare, and other commodities. These contracts established term and supply pricing and estimates of the expenditures the County should expect to make under the contracts.  The contract for inmate food sets forth a per meal price.  The healthcare contract includes fixed fees for onsite medical personnel.  As required by state law, vendor contracts were entered into and approved by the Commission.

During the 2019 budgeting process, Sheriff Vescovo presented his proposed operating budget to Chief Budget Officer Portwood in late July, 2018.  In August of 2018, representatives of the Sheriff’s office met with Portwood to discuss the proposed budget and address any concerns.  When she compiled and made her proposed budget for the County available for departments to review in November of 2018, Portwood had unilaterally reduced the Sheriff’s proposed operating budget by significantly reducing portions of the budget dealing with vendor contracts for operation of the jail including for inmate food and healthcare.  In addition to reducing Sheriff Vescovo’s operating budget, Portwood also reorganized his budget into five line-items or “silos,” a change from how his budget was organized in previous years.  These silos included Field Operations, Civil Process & Court Security, Detention, Administration, and 911 Emergency Management, prohibiting any transfer of these funds to another fund without permission from the County Commission.  In reducing his proposed budget, Portwood did not contact Sheriff Vescovo directly to provide notice of her reductions or give his office any opportunity to discuss the proposed reductions with her or with the Commission as required by law.  Sheriff Vescovo’s office first learned of the reductions when the 2019 County Proposed Budget was posted online for officeholders to review.

On January 28, 2019, consistent with the Budget Officer’s recommendations, the Commission adopted the 2019 Operating Budget, giving the Sheriff $1,788,829, some $1.3 million less than the $3,177,273 he requested.  The appropriations ordinance, approving the budget, also adopted line items, similar to the silos present in Portwood’s proposed budget, thereby prohibiting the Sheriff from moving funds between expense line items and from transferring funds to address critical shortfalls in the areas of inmate food and healthcare.

The adopted budget left a budget shortage of $755,152 for inmate food.  This was over $700,000 less than the Commission budgeted for his office in 2016 and 2017 and over $300,000 less than the Commission budgeted for his office in 2018.  Sheriff Vescovo then filed a Petition for Writ of Mandamus, Declaratory Judgment, and Attorney’s Fees in the Clay County Circuit Court on April 19, 2019.  The Sheriff requested both a preliminary and permanent writ ordering the County to provide an additional $1,754,307 to allow his department to cover various contractual obligations, including payments to vendors for inmate food and healthcare.  His second claim requested a declaratory judgment that the underfunding of his office in 2018 was illegal and damaging to his office, and requested restitution of the reduced amounts and attorney’s fees.  His third claim requested reimbursement of his attorney’s fees.

The trial court refused to issue a preliminary writ based upon the County’s argument that the contracts for services were not yet in arrears and that the Sheriff had not exhausted his administrative remedies by asking the County to consider a supplemental appropriation.  When the Sheriff asked for a supplemental appropriation, as suggested by the County, Portwood, the Chief Budget Officer for the County refused to place the supplemental budget request on the Commissions agenda, pursuant to authority from the Commission to set the agenda with respect to the budget, based on advice from counsel.

The Sheriff requested that the County produce emails and various other communications regarding the Sheriff’s budget.  At the first deposition Commissioner Nolte appeared claiming that all of nine emails were produced prior to the first deposition.  It was revealed however that over 8,000 potentially relevant emails that come up in searches for the Counties email server.  Prior to the second deposition an additional 8,390 emails were produced; however, Portwood testified that she had not searched for personal emails relevant to the discovery request, which were on the personal email accounts of some of the officeholders.  Portwood made no effort to locate personal emails despite her awareness of the issue and the cases expedited timeline.  When the matter came to trial the trial court prohibited the County from presenting any evidence, making statements, or cross examining witnesses during the trial due to its failure to produce emails.  However, during the examination of the first witness the trial court reconsidered its sanctions, based on assurances by the County that it could locate and produce missing emails and other additional communications during the following week.

After the close of evidence, the trial court issued its Findings of Fact, Conclusions of Law, and Judgment, finding for the Sheriff on Count I and issuing a writ of mandamus ordering the County to transfer various funds to the Sheriff  in the amount of approximately $985,000.  The trial court also found that the “Chief Budget Officer Portwood’s testimony was at best not credible.”  That the County provided absolutely no explanation for its decision to cut the Sheriff’s budget.  The trial court specifically found that the County’s actions were “arbitrary, capricious or in bad faith.”  The trial court denied the relief requested in Counts II and III.  As to Count III, the court concluded that it did not have the legal authority to order the County to pay the Sheriff’s legal fees.  The parties appealed the judgment to the Western District.

Analysis: Can Mandamus Be Used to Require a County to Appropriate  Funds?: First, the County did not dispute any of the facts making the question before the Court, whether or not mandamus is an appropriate remedy to require a legislative body to appropriate funds, a question of law.  The Western District recognized, from the outset, that mandamus requiring a county to appropriate almost $1 million dollars was well outside the norm with respect to mandamus, after all appropriation of funds seems to be a matter of legislative discretion.

The Court’s analysis started with examination of the County Budget Law,  as set forth in the Missouri statutes by noting that  the use of the word “shall”  required the County to budget adequate funds to allow the Sheriff to carry out his  or her lawful duties including funds,  to satisfy existing contractual obligations, which include inmate food and healthcare for prisoners.  Furthermore, there was some case law that supported the use of mandamus as a remedy to compel county officials to adopt a budget for certain required expenditures, such as a university extension program.  The County Budget Law sets  forth in detail how the budget process is to work requiring the County to present a complete financial plan.  Of note, was the finding by the trial court that the County Budget Officer did not follow the Budget Law  by failing to provide notice to the Sheriff when she reduced the Sheriff’s budget during the submission stage.

The Western District noted that the financial plan, required by state law, is required to contain adequate provisions for the expenditures necessary for the duties of all County officers and agencies.  The use of the word “shall” throughout the statute indicated that there is a statutory mandate that in adopting a budget the County must consider the needs of the County and its various departments.  The Sheriff was charged with the duty of  acting as a conservator of the peace for the County, by committing offenders to jail.  Inadequate funding for the Sheriff’s department was arbitrary and violated the duty of the County Commission to fund this obligation when the County failed to offer any reason for it actions.  The Western District read the County Budget Law to require the County to adopt a budget to adequately provide for expenditures that are necessary for the sheriff to carry out his duties prescribed by statute.

The actions of the County, during the course of the lawsuit, showed that the County deliberately and unreasonably acted in bad faith by failing to adopt an adequate budget to provide jail services; therefore, mandamus was an appropriate remedy.

Payment of Attorney Fees: The trial court did not award the Sheriff attorney’s fees, noting that by law it could not make such an award under the American Rule.  On appeal the Sheriff argued that he was entitled to attorney’s fees because the actions of the County  with respect to the litigation in this lawsuit were  deliberate, unreasonable  and  taken in bad faith.  Even though, the American Rule does not normally allow for attorney fees in a case like this the Western District  noted the egregious actions  of the County in this litigation of this lawsuit citing the failure to properly respond to discovery rules; raising arguments such as  failure to exhaust administrative remedies  only to abandon this argument by refusing to allow the Sheriff to present his request for a supplemental budget to even be heard by the County.  The actions of the Chief Budget Officer described by the court as “at best not even credible” and the sense that the actions of the County seemed to be retaliatory  based on the Sheriff’s reporting  financial irregularities to the Highway Patrol weighed heavy in awarding attorney’s fees.  The Western District noted that: “On ‘rare occasions in an equity action,’ the circuit court may award attorneys’ fees when it ‘finds it’s necessary to award the fees in order to balance the benefits.’”  Furthermore, the award of attorney’s fees has been recognized in “special circumstances” when a party’s conduct is frivolous without substantial legal grounds, reckless or punitive;  therefore under the facts in this case the award of attorney’s fees was  justified and granted by the Western District.  The case was  remanded to the trial court to determine the amount.  State of Missouri Ex Rel., Vescovo v. Clay County, (WD83130, 12/5/19)

Comment Howard:   The opinion in this case goes against just about everything we have ever learned about mandamus and the overwhelming practice of the courts to issue a writ  of mandamus only for nondiscretionary actions.  It seems that the actions of  the Clay County Commission by putting up every roadblock possible and by engaging in scorched earth bad-faith litigation generally influenced this decision. Therefore, it may be that this case is a one-off; nevertheless,  the  precedent certainly can be used to argue that political officials cannot engage bad faith actions when budgeting for essential services.  I suspect that we will see this case being used to make arguments against arbitrary actions in the budget process.  This case is particularly noteworthy because it is one of the few cases that examines in detail the County Budget Law.  If you are dealing with the County Budget Law this is the case to start with, plus the opinion may provide insights to other budget laws that use similar language.

University Of Missouri  Prohibiting Firearms On University Property Is  Upheld  By Trial Court
Facts and Procedure: University of Missouri, law school professor, Royce de R. Barondes,  challenged the University of Missouri Rule that prevented him from carrying a concealed weapon on campus, which also barred him from keeping his gun in his car while it was parked in a campus owned parking space.  Barondes, questioned the constitutionality of the University Rule, which states that “the possession of and discharge of firearms, weapons and explosives on University property including University farms is prohibited except in regularly approved programs or by University agents or  employees in the line of duty.”  (Rule)

This decades old Rule was promulgated by the  Board  of Curators  of the University based upon the Missouri Constitution governing the state University, which vests in the Board of Curators, “the power to make bylaws or ordinances, rules and regulations as they deem most expedient for the accomplishment of the trust reposed in them.”  The Attorney General of the State of Missouri intervened in the lawsuit challenging the constitutionality of the Rule adopted by the University.  Barondes dropped  out of the lawsuit leaving the  challenge to the Attorney General.  The Attorney General alleged that the Rule violated Article 1, Section 23 years of  Missouri Constitution, which was adopted in 2014 that states:

“the right of every citizen to keep and bear arms, ammunition, and accessories typical to the normal function of such arms, in defense of his home, person, family and property shall not be questioned.  The rights guaranteed by this section shall be unalienable.  Any restriction on these rights shall be subject to strict scrutiny.”

The Attorney General sought a declaration that the Rule violated Article 1, Section 23 to the extent that it prohibited University employees from possessing firearms while driving their vehicles on university property to and from work; from keeping firearms to and out of sight in their locked vehicles parked on University’s property while conducting activities within the scope of their employment; and from transferring firearms from the passenger compartment of the vehicles to the “trunk” of their vehicles while parked on University property and conducting activities within the scope of their employment.  The Attorney General also sought a declaration that the Rule did not provide a meaningful process whereby University employees with valid conceal/carry permits could obtain  permission from the University to carry concealed firearms while at work.

At trial, the University offered two witnesses, MU  Police Chief Schwadt and UMSL  Police Chief Freet.  Both had extensive experience with firearms, police activities and administering  campus police programs, with over 70 years of law enforcement experience between the two.  The credentials of the expert witnesses was impeccable with both witnesses unequivocally being opposed to changing the Rule.  Both  witnesses testified that changing the  Rule would definitely lead to a notable increase in the  numbers of crimes;  an increase in the number of accidents involving firearms; and an increase in potential suicides that they have not had to deal with on campus. Both testified that their respective campuses had virtually no violent crime  or gun violence.   Both testified that changing the Rule would create a much more difficult situation if there was an active ongoing shooting because of the difficulty identifying the active shooter.  Both indicated that in the case of an active shooting the misidentification of the shooter was extremely concerning for law enforcement officials due to more guns being on campus.  Chief Freet stated that he was a self-proclaimed “pro-gun” person.   Both testified that they had concerns about guns being stored anywhere on campus, except in their campus departments.

The University  called  Dr. Donahue, a lawyer, statistician and professor at Stanford Law school, as an expert witness, who has spent decades studying the impact of firearms and regulations on public safety and crime.  Dr. Donahue testified that in his opinion that over time the right to carry laws increase crime to a statistically significant degree.  Specifically, violent crime goes up approximately 1.5% every year to approximately 14% after 10 years.  Dr.  Donahue indicated that this analysis showed that the results were statistically significant around seven years after right to carry laws are enacted, due to a “lag” effect.

The University also called as a witness Dr.  Choi the President of the University of Missouri System,  who testified about his first-hand experience with the Rule and the academic interest advanced by the rule.  As President of the University,  he  is responsible for the management of 75,000 students, 18,000 faculty and staff and a $3.4 million budget.  His responsibilities included campus safety, protecting the reputation of the University, managing the financial health of the University and promoting a positive culture for learning.   He strongly supported retaining the Rule because it, amongst other things, created a safe environment critical to the success of the University.

The State had only one witness,  Dr. Moody  who testified as a statistician,  who was a professor at the University of William and Mary.  Dr. Moody generated an expert witness report and a supplement to that report containing four models designed to determine whether allowing firearms on college campuses affect violent crime statistics.   Using these different models, Dr.  Moody  concluded that the violent crime rate went up after universities allowed concealed carry on campus although the differences  did not rise the level of statistical significance, even though his report showed a positive statistical correlation between allowing concealed carry on campuses and increasing number of deaths or injuries after allowing firearms on campus.

Dr.  Moody compared, in one of his models,  the University of Missouri campus,  where there was a long standing prohibition against having any firearms on campus, to  Missouri State University, which in 2013 changed its laws to allow  firearms  to be kept  on the MSU campus if they were locked in the trunk of their vehicle.  Even though the statistics showed that violent crime increased by some 73% after allowing storage of guns on campus at the Missouri State campus this increase did not rise to a level of statistical significance.  The trial court concluded that the evidence introduced by the State arguably supported the position taken by the University of Missouri.

The trial court found that the witnesses by the University of Missouri were extremely credible.

Conclusions of Law: Authority to enact the Rule: Based upon the evidence, the trial court concluded that the University Board of  Curators had the  constitutional authority to promulgate the  Rule.

Burden of Proof: The trial court also concluded that the burden of proof with respect to the validity of the Rule was with the Attorney General and that he failed to meet that burden.  The Missouri Supreme Court has held that under Article 1, Section 23, laws and regulations pertaining to firearms are not presumptively invalid, despite application of strict scrutiny.  This presumption is consistent with Missouri case law thata statute, law or regulation is presumptively valid and that a court will not declare it unconstitutional unless it clearly contravenes the law.

Purpose of the 2014 Amendment: The  Missouri Supreme recognized that the “central purpose” of the 2014 amendment was not to change the law pertaining to the right to bear arms, but to make certain declarations about that right.  It was adopted to enshrine the status quo as the right to bear arms, it did not change preexisting Missouri law.

 Strict Scrutiny: The trial court also recognized that the right to bear arms is a fundamental right and strict scrutiny is required to analyze the constitutionality of  any regulation of that right.  For this reason, the trial court disagreed with the University’s’ contention that the right to bear arms did not apply on University property as suggested by a number of very old cases.

Compelling Interest: The Rule was  primarily designed to promote safety in the University’s academic mission, which was a compelling interest.  Furthermore, the University had a compelling interest in assuring public safety and reducing related crime,  This argument was supported by testimony of the police chiefs and bolstered by statistical evidence from both sides demonstrating that the Rule was narrowly tailored to achieve a compelling interest.  Furthermore,  the University had a compelling interest in minimizing theft on its property including the theft of firearms as well as minimizing accidental injuries on its property.  In addition, the University had a compelling interest in safety and preventing suicides.  The Rule was also easy to administer, allowing police officers to readily determine when someone should not have a firearm on campus thereby allowing the officers to do their jobs and keep the community safe.  In the event of an active shooter situation the unrebutted testimony of both of the police chiefs was that the presence of firearms on campus would increase the chances of misidentification of the active shooter thereby making law enforcement officers jobs more difficult in an active shooter situation due to the fear of shooting an innocent bystander who might also be armed.

The trial court also found that the Rule was narrowly tailored, least restrictive to achieve compelling interest because all of the evidence in the case pointed to the conclusion that changing the Rule would  affect the safety of the University campuses. Furthermore, the trial court determined that  the Rule satisfied all formulations of the strict scrutiny analysis and that it was narrowly  tailored to achieve a compelling interest.  State of Missouri v. Choi, (No. 16BA-CV03144, 11/18/19).

Comment  Howard: The University of Missouri did a masterful job in this case.  The findings of fact and conclusions of law are extremely useful providing an outline of key points with respect to firearm cases.  First, the University used two of their campus police chiefs to show, based upon their 60 plus  years’ experience,  the adverse impact of changing the Rule.  Even though the numbers cited by the police chiefs showed an increase in crime and other matters related to the availability of firearms they were not statistically significant.  When combined with the testimony of their expert witness,  who did find statistical significance with respect to the Rule, there is an outline showing how to prove the impact of limiting accessibility of firearms on a college campus.  The opinion also clearly outlines the current status of the law with respect to challenges of regulations that limit the use or possession of firearms.  The Findings of Fact an Conclusions of law are a masterpiece that would seem to be required reading if you are involved in a similar firearms case.

Failure To Make An Offer Of Accommodation Results In  Substantial Verdict Against Berkeley
Missouri Lawyers Weekly, recently reported a St. Louis jury verdict in Shumpert v.  City of Berkeley, in the amount of $475,250 ($260,000 in compensatory damages, $60,250 in lost wages, 100,000 for emotional damages, 200,000 an attorney’s fees and $15,000 cost)  for failure to provide a suitable accommodation in an ADA case.   In this case, Shumpert after being employed as a  corrections officer for several years was hospitalized  and diagnosed with a  heart condition, which did not pump enough blood to the rest of his body.  Subsequently, Shumpert had  surgery before returning to work.  The City required him to work “without restrictions.”  Shumpert asked that he be allowed to wear under his jail uniform a protective vest to protect him from severe impacts, based upon his doctor’s advice.  The City rejected the proposed accommodation.

Thereafter, City  supervisors and human resource officials showed open hostility towards Shumpert.  Subsequently, Shumpert was fired and brought suit under the ADA in state court.  Prior to trial Shumpert offered to settle the case for $250,000,  with no counter offer being made by the City.

Comment Howard: This case, shows the dangers of discrimination suits, in particular when it is clear the matter will go to a  jury knowing full well that jurors will be sympathetic with an injured plaintiff who claims discrimination.   It seems with the ability to now use statistical analysis that it would be relatively simple to  reasonably predict this kind of verdict, making the decision process easier since you can anticipate the results.  The City could have settled for $260,000 prior to trail, instead of $475,250.  It seems to me that failure to engage in a process to provide a reasonable accommodation  could have been found, avoiding a significant verdict against the City. It is normally advisable to avoid a verdict that might be a considerable embarrassment to the public officials.