July Newsletter (Issue 07-2019)

No First Amendment Free Speech Violation By Denying Use Of Public Access Channels Because Not For Profit Was Critical Of Operator Of The Public Access Channel
Facts and Procedure: New York state law requires cable operators to set aside channels on their cable systems for public access.  Those channels are operated by the cable operator, unless the local government chooses to itself operate the channels or designates a private entity to operate the channels.  New York City (City) designated a private nonprofit corporation, petitioner Manhattan Neighborhood Network (MNN), to operate the public access channels on Time Warner’s cable system in Manhattan.  DeeDee Halleck and Jesus Papoleto Melendez (Producers) produced a film critical of MNN to be aired on MNN’s public access channels. MNN televised the film.  MNN later suspended Halleck and Melendez from all MNN services and facilities.  The Producers sued, claiming that MNN violated their First Amendment free-speech rights when it restricted their access to the public access channels because of the content of their film.

The district court dismissed the claim on the ground that MNN is not a state actor and therefore was not subject to First Amendment constraints on its editorial discretion.  The Second Circuit, concluded that MNN is a state actor subject to First Amendment constraints and MNN appealed to the United States Supreme Court.

Opinion: Producers argued that MNN, a private entity, restricted their access to MNN’s public access channels because they produced and aired a film critical of MNN on MNN’s public access channels, thereby violating Producers’ First Amendment rights.  The threshold question was whether or not MNN is a state actor.  If MNN is a state actor, it is subject to the First Amendment constraints on its editorial discretion.

Earlier Supreme Court cases held that a private entity can qualify as a state actor in only a few limited circumstances which include, for example, (i) when the private entity performs a traditional, exclusive public function; (ii) when the government compels the private entity to take a particular action; or (iii) when the government acts jointly with the private entity.

The Producers argued that MNN was performing a traditional, exclusive public function (first category above) because it was exercising a traditional, exclusive public function when it operated the public access channels on Time Warner’s cable system.

The Court begins its analysis by noting that that the Free Speech Clause of the First Amendment, prohibits only governmental, not private, abridgment of speech.  A private actor may qualify as a state actor when, it exercises “powers traditionally exclusively reserved to the state.”  In this case, the operation of public access channels by a cable television system has not been traditionally and exclusively performed by government.  The Opinion provides some examples of functions that fall within the state actor requirements such as private parties running prisons, elections or operating a company town.  The Opinion also lists a number of examples where functions do not fall within the state actor category such as running sports associations and leagues, operating nursing homes, providing special education, representing indigent criminal defendants, resolving private disputes, and supplying electricity.  The Court could not find that providing a public access channel on the cable system was a traditional and exclusive public function; therefore, MNN was not subject to the First Amendment Free Speech Clause.

The Opinion reasoned, that by enforcing the constitutional boundaries “…between the governmental and the private, the state action doctrine protects a robust sphere of individual liberty.  The four liberal Justices dissented in this case arguing that the City had a duty to provide the public access the City and when it granted the cable franchise there was a duty on MNN to abide by the First Amendment because it was a public forum.  The obligations to provide public access did not evaporate when the City delegated the administration of the form to a private party.  Manhattan Community Access Corp. et al. v. Halleck et al., (17-1702, 6/17/19)

Comment Howard: It seems that the use of public access channels has greatly diminished in recent years, due to the availability of other forums to communicate; therefore, this case may not be all that significant, except as a window into what constitutes state action and the examples showing where there was state action versus other examples where there was no state action.  The analysis by the dissent, is a sharp contrast with the majority opinion illustrating that the new conservative majority will be much more concerned with property rights and protection of individual liberty by restricting government regulation.

Intoxication Under the DWI Statute Is a Physical Condition Not a Mental Condition Therefore Police Officer and Forensic Expert Could Testify About Intoxication
Jeanne Capozzoli was arrested for driving while intoxicated.  The State charged Ms. Capozzoli with the class B felony of DWI for operating a motor vehicle in December 2015, while under the influence of a combination of alcohol and lorazepam.
A state highway patrol criminalist, who was certified as a forensic toxicologist, testified at trial that lorazapam, a controlled substance, was in the blood.  This witness also testified that, at the levels observed, in combination with alcohol, this drug would enhance symptoms of “drowsiness, dizziness, difficulties with coordination, confusion, and divided-attention tasks.”  The criminalist further testified that the label for the drug would have indicated that a person taking the drug should not drive an automobile.  Defense counsel objected to the testimony by the forensic toxicologist and Officer Dumsday, the arresting officer, about intoxication on the grounds that the 2017 revision of Section 490.065.2(3)(b) prohibits an expert from offering an opinion about whether the defendant had a mental state or condition that constitutes an element of the crime charged.

Section 490.065.2(3)(b), provides:
“In a criminal case, an expert witness shall not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.  Those matters are for the trier of fact alone.”

Capozzoli was convicted by a jury and appealed her conviction to the Western District arguing that the police officer and the forensic expert were not qualified to testify because of the 2017 revisions to Section 490.065.2(3)(b).

Opinion: Capozzoli argued that the “intoxicated condition” element of a DWI offense constituted a “mental condition” under the statute; therefore, the officer and the forensic expert could not state their opinion that Capozzoli was intoxicated.  The statute does not define what constitutes a “mental condition.”  The Western District, noted that it was unclear what the Legislature had in mind when it included “mental condition” in the proscription on expert testimony as an element of the crime charged. Nevertheless, the Court believed that courts have historically characterized intoxication as a physical condition usually evidenced by unsteadiness on the feet, slurring his speech, lack of body coordination and the impairment of motor reflexes. Therefore, the Court found that intoxication under the DWI statute was a physical condition and not a mental condition and the limitations in the statute do not apply.  State of Missouri v. Capozzoli, (WD81399, 06/18/19)

Comment Howard: This is a case of first impression.  I suspect that due to the lack of guidelines, provided by the legislature, with respect what is a “mental condition” and who is an expert we will see a lot more litigation over the statute.  I think that probing the difference between what is physical and what is mental is a lot more complicated than what the court did in this case.  Would you want to go there?

The Phrase, “Except As Otherwise Provided By Law,” In State Statute Includes State Regulations Giving Plaintiffs Three Additional Days To Appeal Commissions Decision
Facts and Procedure: Valley Park Properties, LLC (“Valley Park”) appealed an order by the Administrative Hearing Commission (the “Commission”) dismissing Valley Park’s appeal of the renewal of a permit allowing water discharge onto Valley Park’s property.  The Commission dismissed Valley Park’s permit appeal as being untimely filed because it was filed 32 days after the decision by the Commission.

Opinion: On appeal, Valley Park challenged the Commission’s dismissal, claiming that it timely appealed the permit issued to St. Louis Composting, Inc. (“St. Louis Composting”) by the Missouri Department of Natural Resources (the “DNR”) because it filed its appeal within thirty-two days of the issuance of the permit.  Specifically, Valley Park argued that even though Section 621.250.2 provided only thirty days to appeal from a permit issuance, the Regulations allowed aggrieved parties an additional three days to file an appeal if the permit was mailed.

Section 621.250.1. governing the time limits for an aggrieved party to appeal a DNR decision provides:

Except as otherwise provided by law, any person or entity who is a party to, or who is aggrieved or adversely affected by, any finding, order, decision, or assessment for which the authority to hear appeals was transferred to the administrative hearing commission in subsection 1 of this section may file a notice of appeal with the administrative hearing commission within thirty days after such finding, order, decision, or assessment is placed in the United Sates mail or within thirty days of any such finding, order, decision, or assessment being delivered, whichever is earlier. (Emphasis Added)

The Clean Water Commission promulgated a rule concerning the time allowed to appeal a permit decision, which provides in part:

Three (3) days shall be added to the prescribed thirty (30)-day period for appeals of conditions in issued permits when the service of notice is accomplished by mail.

The Eastern District noted, that neither DNR nor St. Louis Composting provided in their briefs any authority suggesting that the phrase “except as otherwise provided by law” was intended to exclude agency rules and regulations.  Furthermore , if the Missouri Legislature intended the phrase “except as otherwise provided by law,” to apply exclusively to statutes, it would have stated.  In addition, there was no conflict between the statute and the rule extending the time to file an appeal; therefore, the Commission’s dismissal of Valley Park’s permit appeal erroneously interpreted and applied the law.  Valley Park Properties, LLC, v. Missouri Department of Natural Resources, (ED107602, 07/02/19)

Comment Howard: The phrase “except as otherwise provided for by law” is a phrase we encounter regularly in our practice of local government law, as shown by the review of the case interpreting this phrase in last month’s newsletter.  Yes, “by law” could include city ordinances.  I also think that probing what constitutes a mental condition instead of a physical condition, as occurred in this case, is a whole lot more complicated than portrayed by the Court.  I can wait until the courts have to untangle these differences.

Appeal From The Board Of Adjustment Denomination As A Declaratory Judgment And Injunction Can Stand As Long As It Contains All Of The Necessary Elements For A Writ of Certiorari
Facts and Procedure: Emerald Pointe, is the developer of Emerald Pointe, (Subdivision) located in Taney County.  Emerald Pointe was in the process of building private roads in the Subdivision when the Taney County Commission (Commission) issued a Stop Work Order to cease all road construction activities within the subdivision because they did not comply with County standards for road construction.  When the Emerald Pointe Subdivision was platted, the County Code provisions pertaining to construction of private streets and other infrastructure for the subdivision apparently did not apply.  The Commission adopted changes in its Code with respect to private streets after the platting of the Emerald Pointe Subdivision.  Emerald Pointe filed with the Board of Adjustment (Board) its application for appeal of the Stop Work order, which was denied by the Board.  Emerald Pointe then filed a petition for Declaratory Judgment and Injunctive Relief in the Circuit Court, naming the Board, the Commission and individual members in their “official capacity” as defendants (collectively referred to as “Defendants).  Notably, Emerald Pointe, did not file with the Circuit Court a petition for a writ of certiorari asking for a Preliminary Writ to be issued to the Board and requesting that the Board file a return with the Court as required by the state statute, in order to appeal from the board of adjustment.

The Defendant’s, thereafter filed a motion to dismiss the petition claiming that Plaintiff’s Petition should be dismissed with prejudice because it failed to file a Petition for a Writ of certiorari within 30 days of the challenged decision.  Defendants argued that the exclusive remedy to review the Boards decision denying its appeal was to follow Section 64.870.2, by filing a petition for writ of certiorari within 30 days of the Board’s decision.  Defendants described Plaintiffs action as an end run around the statute because the requested relief (declaratory judgment and injunction) was not available under the statute.  The trial court granted Defendant’s motion to dismiss and Emerald Pointe appealed to the Southern District.

Opinion: Emerald Pointe, contended on appeal that its petition stated a cause of action under Section 64.870.2.  Emerald Pointe, conceded that Section 64.870, provided the exclusive remedy for challenging the Boards decision and that a petition under the statute had to be filed within 30 days after the board’s denial of its appeal.  Emerald Pointe argued that its petition for declaratory judgment and injunction was filed within 30 days and that its petition stated all of the elements necessary for a writ of certiorari to appeal the Board’s decision.

The Southern District reasoned Defendant’s petition contained all of the statutory requirements necessary to state a cause of action in appealing a decision from the board of adjustment.  Even though Defendants petition was denominated as a request for declaratory judgment and injunctive relief, the Southern District noted defendants petition contain all of the elements necessary to file a petition for writ of certiorari.  The petition was verified; stated that the decision was illegal in whole or part; specified the grounds of the illegality; and asked for relief therefrom making the petition sufficient in all material respects with the statute.  In addition, the petition specified three reasons why Defendants Stop Work Order was illegal.  Furthermore, it alleged six reasons why the Stop Work and the Board’s denial of the Emerald Pointe, appeal of that order was illegal.  The Southern District relied heavily on Deffenbaugh Indus., Inc. v. Potts, to support its position that the request for declaratory relief and injunction was sufficient as long as the allegations in the petition contained necessary elements of a petition for a writ of certiorari.

Deffenbaugh teaches that while declaratory claims for relief are superfluous to a contemporaneous claim for judicial review and should be dismissed, the assertion of such claims do not negate the claim for judicial review.  Here, as in Deffenbaugh, Emerald Pointe’s references and prayers for relief in the petition directed specifically and exclusively toward injunctive and declaratory relief are superfluous to its stated claim for judicial review but do not negate that claim.  (Emphasis by the Court).  Emerald Pointe, LLC, vs Taney County Planning Commission, et al., (SD 35733, 07/01 /19).

Comment Howard: This case means that as long as you plead the essential elements to support a review of the board of adjustments decision as a petition for certiorari under the statute that the claim will stand no matter what you call it.

Request For Declaratory Judgment And Injunction  Is Proper Remedy Instead Of Mandamus To Obtain Approval  “As To Form” By The Secretary Of State Of Referendum Petition
Introduction: Most of us have approved thousands of documents as  to “form” for years.  American Civil Liberties Union of Missouri v. Ashcroft, answers the question as to what it means when we  sign a document,  “Approved as to Form.”  This case also answers the question, concerning whether or not mandamus was the only remedy to compel the Secretary of State to approve as to form a sample  referendum petition ballot  sheet to collect signatures for a referendum on the recently adopted changes to Missouri abortion laws.  You might be surprised by the answer to whether or not mandamus is the right remedy.  I was surprised by what I learned.

Facts and Procedure: On May 17, 2019, House Bill No. 126 (“HB 126”) passed the General Assembly and was sent to the Governor for approval who signed it into law on May 24, 2019.

HB 126 repeals seven statutes and replaces the repealed statutes with seventeen new provisions.  The new provisions all relate to the regulation of abortions.  One of the seventeen new provisions, Section 188.028, had an emergency clause, which reads as follows applies, as follows:

Because of the need to protect the health and safety of women and their children, both unborn and born, the repeal and reenactment of Section 188.028 of this act is deemed necessary for the immediate preservation of the public health, welfare, peace and safety, and is hereby declared to be an emergency act within the meaning of the constitution, and the repeal and reenactment of Section 188.028 of this act shall be in full force and effect upon its passage and approval.

The remaining sixteen provisions of HB 126 do not contain an emergency clause.

On May 28, 2019, the ACLU submitted a referendum petition sample sheet (“Sample Sheet”) to Secretary of State John (“Jay”) R. Ashcroft (“Secretary of State”). The submission of a sample sheet is required by ‘Section 116.332, and is the first step required to exercise the referendum power reserved in the people by Article III, Section 49 of the Missouri Constitution.  The Secretary of State forwarded the Sample Sheet to Attorney General Eric S. Schmitt (“Attorney General”) and to State Auditor Nicole Galloway (“Auditor”) to be reviewed and processed as required by Section 116.332.

On June 6, 2019, the Secretary of State notified the ACLU that its Sample Sheet was being rejected on constitutional grounds as follows: “Our legal department has determined that your referendum is not compliant with Article III, Section 52(a) of the Missouri Constitution.” The Secretary of State concluded that because HB 126 contained an emergency clause, the act was constitutionally ineligible in its totality for the referendum process.  The Secretary of State reported no other issues warranting rejection of the Sample Sheet.  After rejecting the Sample Sheet, the Secretary of State withdrew the Sample Sheet from the Attorney General and the Auditor.

On June 6, 2019, the ACLU filed suit in the Circuit Court of Cole County, Missouri against the Secretary of State, the Attorney General, and the Auditor, in their representative capacities (collectively referred to as “the State”).  The ACLU’s verified petition sought a temporary restraining order, preliminary and permanent injunctive relief, and declaratory relief.  The petition sought a declaration that HB 126 is not subject to an emergency clause that forecloses exercise of the power of referendum; requested a declaration that the Sample Sheet was sufficient as to form and should have been approved; permanent injunctive relief  prohibiting the State from rejecting the Sample Sheet on the basis of the emergency clause applicable to Section 188.028 of HB 126; permanent injunctive relief requiring the Secretary of State to approve the Sample Sheet, to prepare a ballot summary statement, and to certify the official ballot title; permanent injunctive relief requiring the Auditor to prepare a fiscal note and fiscal note summary; and permanent injunctive relief requiring the Attorney General to approve the ballot summary statement and fiscal note.

The Court noted during the hearing on the ACLU’s motion that the ACLU was asking the Court  to compel the State actor and the Secretary of State to do something, which the Court in his opinion, required a writ of mandamus.  The Court then stated that he would give the ACLU  leave to amend its petition to ask for a writ of mandamus or the Court would dismiss the petition and the ACLU could refile it.  The ACLU was granted leave to file amended petition.  The ACLU did not file an amended petition and the Court entered an order dismissing the petition with prejudice, overruling all motions.  The ACLU appealed to the Western District.

Opinion: Approved as to Form: The first step taken to initiate the referendum process is a proponent’s submission of a referendum petition Sample Sheet.  Before a referendum petition can be circulated for signatures, “a sample sheet must be submitted to the secretary of state in the form in which it will be circulated.”

Sections 116.332 repeatedly uses the phrase “sufficiency as to form” to describe the secretary of state’s statutory authority during the “pre-signature collection stage” of the referendum process to approve or reject a sample sheet.  Though the phrase, “sufficiency as to form,” in Section 116.332 is not afforded an express statutory definition, Section 116.030 effectively serves as the definition for the phrase, as it addresses the required form of a referendum petition sample sheet, and includes an exemplar form.  Importantly, Section 116.030 provides that the exemplar form “shall be substantially the form of each page of referendum petitions on any law passed by the general assembly of the State of Missouri,” and that “[i]f this form is followed substantially and the requirements of Section 116.050 and Section 116.080 are met, it shall be sufficient, disregarding clerical and merely technical errors.” (Emphasis added.)

In addition, the Court noted that its conclusion comports with the plain and ordinary dictionary meaning of the word “form” when used in a context that is relevant to the sample sheets used in the statute.

The word “form,” when referring to a form of document, means: “4 a : manner, method, or style (as of proceeding) b : established method of expression or practice : fixed or formal way or proceeding : procedure according to rule or rote c : a prescribed and . . . set order of words . . . . e (1) : a printed or typed document with blank spaces for insertion of required or requested specific information . . . .” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 892 (1993).

Because Section 116.030 described the required form of a referendum petition sample sheet, and directs that a sample sheet in substantially the form of the exemplar form “shall be sufficient,” the Court concluded that the phrase “sufficiency as to form” in Section 116.332 referred to whether a sample sheet is in substantially the form required by Section 116.030.

The Court decided only that the Secretary of State had no authority pursuant to Section 116.332 to consider constitutional compliance when reviewing the ACLU’s Sample Sheet for sufficiency as to form, and was instead limited to reviewing the Sample Sheet for sufficiency as to form, as defined by Section 116.030.

Is mandamus the proper remedy to obtain approval of the form?: The ACLU, argued that the Secretary of State employed a standard for reviewing the sufficiency of its Sample Sheet that exceeded his statutory authority.  Having obtained  a declaration  that the actions  of the Secretary of State were illegal,  the remaining question was whether  a mandatory injunction  was the proper remedy.

The Western District, begins its analysis by noting that  the Secretary of State did  not cite any authority that a State actor cannot be  compelled to perform a duty or act required by statute.  Furthermore, Missouri cases recognize that injunctive relief and mandamus are in fact,  akin to one another.  The Court noted that the ACLU was not seeking sanctions for the Secretary of State’s actions in excess of his authority.  Instead it was  asking for relief from the failure of the Secretary of State to comply with his statutory obligations.

In addition, the Court reasoned that even if the ACLU had requested a writ of mandamus, in lieu of a permanent injunction, the issuance of a writ of mandamus is discretionary.  Furthermore,  the Secretary of State contested  whether section 116.332 imposed a clear, unequivocal and specific  duty with respect to his review of  the Sample Sheet, arguing that  the  Secretary of States obligation is  discretionary and not mandatory, particularly when the question  has not previously been decided by a Missouri court.   These statements, by the Secretary of State, destroys the argument that the ACLU should have  filed a writ of mandamus. Therefore, the Court questioned the availability of mandamus holding that the Secretary of State actions exceeded his power and  a mandatory injunction to compel the Secretary of State to comply with his duties as defined by statute was warranted.  American Civil Liberties Union of Missouri v. Ashcroft, (WD82880, 7/08/2019)

Comment Howard: How hard can it be to approve a Sample Sheet for a referendum petition, particularly when hundreds if not thousands of similar Sample Sheets  have been previously approved as to form?  Not hard,  unless you have a different agenda.  It was obvious, that the refusal  by the Secretary of State, John  Ashcroft,  to approve the Sample Sheet, as to form, was a deliberate stalling tactic to limit the time to collect signatures on a referendum petition, leading the court to note  the impact on the limited  time to collect signatures.

In addition, there is plenty of gamesmanship/blame to go around since  the Attorney General did not follow usual AG procedures by failing to publish the opinion, with reasons for its rejection as he normally did for hundreds of other referendum petitions.  See  FN 11.  Notably, FN 11,  states that when the AG opinions are published, the published opinion states that review is pursuant to Section 116.332, and is “simply for the purpose of determining sufficiency as to form,” and the standard disclaimer by the AG further states that the fact the Attorney General has not rejected the sample sheet “is not to be construed as a determination that the petition is sufficient as to substance.”  The failure of the AG to follow the AG’s normal procedures was elicited during oral argument.

“Me Too” Argument Does Not Extend Statute of Limitations:
Facts and Procedure: Dachenhausen worked as a Lead Analyst for the City of Independence Police Department.  Halsey, the Deputy Chief of Police, was her supervisor.  In 2012, Halsey asked Dachenhausen to send him naked pictures of herself, and Halsey sent her pictures of a naked woman  that he said was his wife.  On May 17, 2013, Halsey placed his hands on Dachenhausen’s buttocks and pulled her into his erect penis.  Dachenhausen fled Halsey’s presence immediately after this incident.  Dachenhausen further alleged Halsey placed his erect penis near her face while at work on an unspecified date.  As a result of Halsey’s conduct, Dachenhausen resigned from her position with the City of Independence.  While the conduct described in her Amended Petition was alleged to have occurred in 2012 and 2013, Dachenhausen alleged she did not fully appreciate the psychological impact of Halsey’s actions until the fall of 2017, when the “Me Too” movement became prominent>

On May 9, 2018, Dachenhausen filed suit against Halsey, in Jackson County Circuit Court, for assault, battery, intentional infliction of emotional distress, and negligent infliction of emotional distress.  In lieu of an answer, Halsey filed a motion to dismiss, arguing Dachenhausen’s claims were time-barred.  The trial court overruled Halsey’s motion to dismiss and Halsey petitioned  the Missouri Supreme Court for a writ of prohibition and the Court issued  a preliminary writ of prohibition.

Opinion: SOL for Assault and Battery – The Court noted, that prohibition is a proper remedy to prevent a lower court from proceeding on a claim barred by the statute of limitations.  Halsey argued that the claim was time-barred because the statute of limitations for assault and battery claims is two years and Dachenhausen filed her claim almost 5 years after the alleged conduct occurred.  Since the defense of the statute of limitations is an affirmative defense the court is required to find that the petition on its face is time-barred in order to dismiss the petition.  Based upon the pleadings and the affirmative defense asserted by Halsey the claims for assault and battery were time barred.

SOL for Emotional Distress: Halsey also  argued that Dachenhausen’s claims for negligent and intentional infliction of emotional distress do not state a cause of action independent from a traditional tort and are therefore barred by the statute of limitations.  However,Dachenhausen’s claims for negligent and intentional infliction of emotional distress  are different from the assault and battery claims because they have a factual and legal basis independent of her assault and battery claims.  Specifically, Dachenhausen alleged that Halsey asked her to send him naked photographs of herself, sent her naked photographs of a woman he said was his wife, and placed his erect penis near her face while at work.  Notably, Dachenhausen does not allege that she was put in apprehension of an offensive touching or that Halsey intended to complete an offense touching when he placed his erect penis near her face; therefore, these allegations are not simply repackaged assault or battery claims as claimed by Halsey.

The Court noted,  that a jury could reasonably find the facts alleged by Dachenhausen were “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”  Therefore, the amended petition stated a claim upon which relief could be granted, considering that the court must accept all properly pleaded facts as true, giving the pleadings their broadest intendment and construing all allegations favorable to the pleader.  Apparently, the pleadings did not specify exactly when these claims occurred; therefore, the Court suggested that a motion to make more definite and certain might disclose facts sufficient to determine the precise date when the  five-year statute of began allowing Halsey to further pursue his SOL affirmative defense.  State ex rel. Halsey v.  The Honorable  Jennifer M. Phillips, (SC97288,  06/25/19)

New Bond Rules Delayed Until January 1, 2019

Missouri Lawyers Weekly, recently had an article on new bond  rules, which impact Municipal Court, explaining that the effective date  for new bond rules was extended until January 1, 2020. The article notes that if judges impose a monetary condition they must consider the defendant’s ability to pay.  You can review the rules with this link.  New Supreme Court Rules For Rule 37

Comment Ragan: Over the next few months I will try cover this issue.

Walk And Talk Explained
Facts and Procedure: Officer Billy Simpson and Detective Ken Minica of the Polk County Sheriff’s Department first encountered White’s property in rural Missouri, when they were attempting to locate an address for an unrelated criminal investigation.  Unable to do so, the officers sought to contact local residents for assistance and came upon White’s property.  The officers drove down its long driveway, which is lined with dense woods and loops around a house, and continued to the south side of the house until they reached what they believed was the front.  They exited their vehicle and immediately smelled a strong odor of green marijuana.  After briefly speaking with White about the unrelated criminal investigation, the officers left.

Later in the day and accompanied by several COMET Drug Task Officers, Detective Simpson and Officer Minica returned to White’s property.  Two officers drove through White’s driveway until they reached what they believed was the front door.  The officers knocked on the door in an attempt to contact White, but no one answered. During this second visit, the odor of marijuana was even stronger than it had been earlier in the day.  After no one answered the door, the officers decided to apply for a warrant to search White’s property, and several officers remained there to secure the area while awaiting the warrant.  The officers did not search anything while they waited.

The officers who stayed behind then encountered Bearden, who told them that he rented the adjoining property from White.  When questioned, Bearden stated that he had “personal use marijuana” in his residence and allowed the officers to enter his property.  There, the officers again smelled a strong odor of green marijuana.  Based on these observations and interactions with Bearden, officers sought a warrant to search Bearden’s property as well.  Both warrants were issued, and officers found hundreds of marijuana plants growing inside the shop building on White’s property and inside the shed on Bearden’s property.

White and Bearden were indicted.  They each separately all filed motions to suppress, alleging violations of the Fourth Amendment.  After the magistrate judge held a joint evidentiary hearing, both motions were denied in a single order.  Bearden’s case was resolved with a plea and White continued to contest the lawfulness of his search appealing to the Eighth Circuit.

Opinion: The parties recognized that the initial visit to White’s property was constitutionally permissible because no Fourth Amendment search occurs if police officers who enter private property “…restrict their movements to those areas generally made accessible to visitors, such as driveways, walkways, or similar passageways.”  This is known as the walk-and-talk exception, which is based upon implied consent allowing anybody to go to your front door, knock  and talk in order to get information.

White argued that, even though the first search was clearly within constitutional bounds, the  second search violated his constitutional rights making the seizure unconstitutional.  The Court held that the second entry into the curtilage did not constitute a search, but was rather “knock-and-talk” permitted by the Fourth Amendment.  Once the officers discovered evidence of criminal activity, based on the strong odor of marijuana, they were permitted to return to the property for a legitimate law enforcement objective under the walk and talk doctrine.  The Court distinguished this case from Jardine,  a U. S. Supreme Court case, because in Jardine the officers could not rely on the knock-and-talk exception since in Jardine the  officers had introduced a trained police dog to explore the area around the home, in hopes of discovering marijuana incriminating evidence.  In this case, the Eighth Circuit held that the officers conduct did not objectively reveal a purpose to conduct a search; therefore, the motion to suppress the evidence was properly overruled by the trial court.

There was a very strong concurring/dissenting opinion in this case, which would have held that returning to the property with two additional police officers from the Drug Task Force  clearly disclosed the officer’s intent to collect  evidence.  At the hearing on the motion to suppress Officer Simpson testified that:

“…after running into drug task force officers at another location, he “advised them of what we had smelled and what we had noticed while making contact with Charles White earlier that day.  And upon that discussion with the task force officers, we decided [to] try to establish contact with Mr. White again . . . and see if we could continue to smell what I had smelled earlier that day.”

The  concurring/dissenting opinion states:

To be clear, while the subjective intent to search for evidence, standing alone, does not implicate Jardines, the officers’ objective behavior does.  The officers did not simply exercise the license the public had to approach White’s home to “knock and talk.”  Rather, they returned to White’s home a second time accompanied by COMET Drug Task Force officers who had agreed to travel to White’s residence to help smell for marijuana.

The concurring/dissenting opinion agreed that the  conviction should have been  upheld because the police officers initial visit was sufficient to obtain a search warrant.  U. S. v.  White, (8thCir., 17 –3097, 06/28/19)

Comment Howard: I thought that the dissent was very strong.  I would be particularly careful with relying on this Opinion until it is final.  The Opinion does provide a very good analysis of the walk-and-talk doctrine.

No Qualified Immunity For Police Officer Who Shot Person Who Threatened Suicide When That Person Appeared To Be Complying With Officers Direction To Drop Gun
Facts and Procedure: On October 17, 2016, Keagan walked into the woods with a gun.  His mother called 911.  She said he ingested cough syrup and possibly marijuana, was depressed after being suspended from school earlier that morning and threatened to shoot himself.  She said he was not going to hurt anyone but himself.  She repeated these facts to the first officer on the scene, explaining that Keagan was suicidal, walked into the woods with a gun, and (she believed) was going to try to hurt himself.  Ellison was dispatched to help with the search.  Using a police dog, he found Keagan standing 45 feet away on a riverbank.  Ellison told Keagan to show his hands.  Keagan turned slightly to his right.  Ellison saw a gun in Keagan’s right hand, drew his gun, and ordered Keagan to drop the gun.  Without speaking, Keagan instead raised the gun to his right temple.  Ellison commanded Keagan to drop the gun “several times.” Keagan remained silent.  As Keagan began moving the gun away from his head, Ellison fired three shots. Two hit Keagan and killed him.

His parents, Piper Partridge and Dominic Schweikle, sued Ellison, the Chief of Police, and the City of Benton, Arkansas under 42 U.S.C. § 1983 and Arkansas law.  The district court granted Defendant’s motion for judgment on the pleadings and qualified immunity to Ellison, the police officer.  Partridge and Schweikle appealed to the 8thCircuit

Opinion: The Court noted,  that in order to overcome a  qualified immunity defense, on a motion for JOP,  the pleadings most allege that the officer violated a statutory or constitutional right and that the right was clearly established at the time of the challenged conduct.  This appeal turned on the claim that the  Ellison violated  Keagan’s Fourth Amendment right to be free from excessive force, which is dependent upon whether the officer’s actions were “objectively reasonable in light of the facts and circumstances confronting him.”   Objective reasonableness is determined in the light of circumstances of the facts and circumstances confronting the officer.  An officer  can use deadly force if he has probable cause to believe that a suspect poses a threat of serious physical harm to the officer or others.

The Court reasoned, that at  the time the officer  ordered Keagan to drop the gun, Keagan was holding against his head, it would have been necessary for Keagan to move the gun away from his head in order to comply with the Officer’s command.  Furthermore, Keagan may have slowly lowered the gun, while pointing it in the opposite direction of the Officer, leading a reasonable  officer to believe that Keagan was compliant with his order.

The Court noted that Keagan was not suspected of a crime, was not actively resisting arrest or attempting to flee,  but he was, however, armed, suicidal, and under the influence of cough syrup and possibly marijuana.  Whether a reasonable officer could conclude  Keagan posed an immediate threat depended on the circumstances at the time of the shooting.  Taking the facts in the complaint as true, “Keagan simply began to move the gun away from his head,” “was shot as he began to move the gun away from his head, per Ellison’s orders to ‘drop the gun,’” and “never pointed the gun at the officers.”  Based on these facts, the Court determined that no reasonable officer could conclude that  Keagan posed an immediate threat.  Patridge v. City of Benton, (8thCir., 18-1803, 07/03/19).

Comment Howard:This is another one of Judge Benton’s  gems.  The opinion and is a very good summary of the defense of qualified immunity.  The opinion is concise and short.