November Newsletter (Issue 11-2019)

FBI Records “Retained” By MHSP Are Subject To Sunshine Law – No Federal Preemption
Facts and Procedure: Corporal Harper was shot at his home in 1994.  Both the Missouri State Highway Patrol (MSHP) and the Federal Bureau of Investigation (FBI) opened separate investigations into the shooting.  The FBI policy, in 1994, permitted attaching a copy of the FBI report to the narratives of state agencies.  In 2001, a policy change limited the state agency to only reference the FBI report number in its own narrative.  The MSHP investigators, with FBI clearance to review FBI reports, would write a narrative report referring to the FBI report information.  In 1996, the MSHP created lead report #151, a narrative of an FBI interview, with the FBI report attached to the narrative.

In 2016, the MSHP created lead report #305, a narrative referencing information from a different FBI report, without the FBI report attached.  Ms. Kimberly Harper submitted an online Sunshine Law request in July 2015 to MSHP’s Custodian of Records, requesting the disclosure of all records pertaining to Cpl. Harper’s June 1994 arrest of Mr. Robert Joos (“Joos request”).

In May 2016, the MSHP gave the Harpers most of the 2200 documents requested and provided a log of records that it claimed to be exempt from disclosure under Section 610.100.3, and for lack of jurisdiction.  Among documents logged for redaction, the MSHP redacted lead report #151 and lead report #305 (“records at issue”).  The reason stated in the privilege description for lead report #151 is as follows:  “This report was prepared by the FBI as is not within the State’s jurisdiction to release.” Additionally, this report was prepared by an undercover officer.  Revealing the officer’s name would jeopardize the safety of that officer and his or her family.  The reason stated in the privilege description for lead report #305 is as follows: “This report was prepared by the FBI as is not within the State’s jurisdiction to release.”

The circuit court found in favor of the MHSP, concluding that the records at issue retained or referenced in the MSHP investigative file are closed records under the Freedom of Information Act (FOIA).  The Harpers appealed to the Western District.

Analysis: The question before the Western District was whether the records at issue were subject to FOIA and whether FOIA preempted the Missouri Sunshine Law because, “Under the Supremacy Clause, state laws and constitutional provisions are ‘preempted and have no effect’ to the extent they conflict with federal laws.”

Preemption: The Court noted that preemption of state law can be found in one of two ways.  First, a state law may be expressly preempted by the federal law enacted by Congress.  Second, preemption may occur because of “field preemption,” which occurs when a state regulates conduct “in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance.”

The intent to displace state law altogether may be inferred from a framework of regulation “so pervasive … that Congress left no room for the States to supplement it or where there is a federal interest … so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.”

As a general rule, a court should not interpret a federal statute to preempt state law when the statute at issue pertains to areas traditionally controlled by state law.  To determine whether state law is preempted by a federal statute, the Court must examine the text and structure of the federal statute.

The text of FOIA, states: “[E]ach agency, upon request for records . . . shall make the records promptly available to any person.” FOIA’s enforcement provision, refers only to “agency records.” “Agency” is defined as any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.”

Based on the above definition the Western District concluded that the definition of agency made it clear that the disclosure obligations imposed by Section 552(a)(3) of FOIA were intended to apply only to federal agencies; therefore, there was no preemption.  Congress did not set forth a clear and manifest purpose to supersede state laws traditionally governing the public records of state agencies; therefore, the circuit court erroneously applied the definition of “records” from 44 U.S.C. § 3301(a)(1)(A) to determine that the records at issue in this case were agency records for the purpose of FOIA.

Records “Retained” by MHSP Are Subject to Sunshine Law: The Court begins its analysis of Missouri law by examining the definition of public record, which is defined as “any record, whether written or electronically stored, retained by or of any public governmental body.”  Under the Sunshine Law, “meetings, records, votes, actions, and deliberations of public governmental bodies” are accessible to the public except when “otherwise provided by law.”

MSHP argued that the records at issue are the property of the FBI, as a way to shoehorn the records into the category of “agency records” and that the FBI did not intend to relinquish control over its disseminated information, but allowed the MSHP to retain, analyze, and process the records while maintaining FBI legal control.

The Harpers countered this argument by noting that the MSHP is a public governmental body and “retained” the records at issue; therefore, they are “public records” subject to disclosure under the state open meetings and records statute. Applying the standard analysis to determine the meaning of the word “retained” the court applied the ordinary dictionary meaning of the word “retain,” which is “to hold or continue to hold in possession or use: continue to have, use, recognize, or accept: maintain in one’s keeping….”

Based on the meaning of the word retain and applying the rule of construction that the Sunshine Law should be liberally interpreted to carry out its purpose, which is to make governmental records accessible to the public the Western District concluded that the circuit court erred in ruling that the records did not have to be disclosed.  Harper v. Missouri state Highway Patrol, et al., (WD82465, 11/5/19 )

Comment Howard: There is a reasonable probability that buried within your police department is a record from the FBI, for which there can no longer be a claim that the FBI record is protected under the exceptions to Sunshine Law.  You would be well advised to inform your records clerk and the police department that they should not withhold these records under the Sunshine Law without an opinion that they can be lawfully withheld from disclosure.

There Is No Obligation To Register As A Lobbyist If There Are No Revenues Or Expenditures
Introduction: Approximately one year ago a panel for the Eighth Circuit held that Ron Calzone was required to register under the Missouri Ethics Law as a lobbyist even though he was not paid, nor was he “designated” as a lobbyist.  In the December 2018 MMAA newsletter (   I discussed this case indicating that there was a vigorous dissent and there was a probability that there might be additional appeals, which there were, bringing us to this case, a full en banc opinion, that reversed the opinion by the earlier 8th Circuit panel.  In a hotly contested case, by 6 to 5 vote, the Eighth Circuit held that the requirement to register with the Missouri Ethics Commission violated Ron Calzone right of Free Speech under the First Amendment because he did not receive revenues nor did he make expenditures.

This case has enormous implications for local government officials, some good and some bad.  The good news is that your job just got a whole lot easier because there is now a very clear bright line as to whether or not a local government official is a lobbyist.  If a person does not get paid nor make an expenditure, there is no requirement to register.  The bad news is that the effort to limit the impact of dark money in our political system just got a whole lot harder because of the lack of transparency caused by this decision.  This is a case of first impression with the opinions written in a way that they are likely to attract the attention of the United States Supreme Court and others because it is a groundbreaking case with enormous implications.

Facts and Procedure: Calzone is an active figure in Missouri politics.  He “regularly speaks to legislators,” sometimes in one-on-one meetings and other times by testifying before Missouri’s General Assembly.  Importantly, however, Calzone only talks and listens when pressing his views with legislators.  He does not get paid in connection with his activities, nor does he “make expenditures for the benefit of” public officials.

Calzone often acts through a nonprofit corporation called Missouri First, Inc.  The parties agree that this organization is effectively his alter ego: he is its incorporator, sole officer, president, director, and registered agent.  According to Missouri First’s charter, it seeks to “educat[e] and mobiliz[e] the public” about matters of civic importance and support various candidates and initiatives.  Like Calzone himself, Missouri First spends and receives no money in pursuit of these goals.  According to Missouri, Calzone’s ties to Missouri First make him a “legislative lobbyist.”  As relevant here, this label applies to “any natural person who acts for the purpose of attempting to influence” legislative activities and has been “designated to act as a lobbyist by any . . . nonprofit corporation, association[,] or other entity.”

All lobbyists in Missouri must navigate a maze of legal requirements.  They must first file a registration form, under penalty of perjury, with the Missouri Ethics Commission within five days of beginning any lobbying activities.  The form, which costs ten dollars to file, requires disclosure of the lobbyist’s name and business address, as well as the names and addresses of anyone “employ[ed] for lobbying purposes.”  This information becomes a matter of public record.

There are also ongoing obligations.  Lobbyists must update the Missouri Ethics Commission within one week of a “change in [their] employment or representation.” They are required to file monthly declarations, again under penalty of perjury, listing any expenditures they make and twice a year, they have to disclose what “proposed legislation [they] . . . supported or opposed.”

Noncompliance carries severe penalties.  In addition to hefty fines, violators face prison time, up to four years for repeat offenders.  Anyone can initiate an investigation simply by filing a complaint with the Missouri Ethics Commission.  Calzone has faced two official complaints, including one that resulted in a formal inquiry.

Convinced that these restrictions violated his First Amendment free speech and petition rights, Calzone sought a permanent injunction to prevent members of the Missouri Ethics Commission from “enforcing [the law] against [him].”  In support of his request for individual injunctive relief, Calzone’s focus was on why the restrictions are unconstitutional in light of his particular method of advocacy.  He stressed, for example, that he “does not accept money for his activism, nor does he spend money on legislators and legislative staff when he communicates with them about his public policy beliefs.”

Analysis- Expenditure Issue: The first order of business, before the Court, was to determine whether or not to take up an issue not addressed by the district court or in the opinion of the earlier opinion, issued by the 8th Circuit panel.  The new issue, raised for the first time at oral argument before the 8th Circuit panel was: If there are no expenditures is a person required to register as a lobbyist.  The dissenters argued, considering the importance of this question that the Court should start over so that it could be fully aired and its implications more completely explored by the district court and an Eighth Circuit panel, as normally happens before setting the holding in stone.

Requiring Registration When There Is No Revenues or Expenditures: Having determined that the Court had jurisdiction to rule on the expenditures issue the Eighth Circuit framed the question this way:  Can Missouri require Calzone to register as a lobbyist, pay a fee and publicly disclose his political activities, even though he neither spends nor receives any money in connection with his advocacy?

First, the Court noted that Calzone is engaged in First Amendment activity, which is at the core of the First Amendment.  Under current case law both Calzone and Missouri First (an organization controlled by Calzone) have the right to make their views known. Missouri also has the power to regulate speech, however the nature of the regulation determines how closely it is scrutinized.  In this case, the Missouri Ethics Law required Calzone to reveal his identity and the divulge his activities.  It is a therefore a “disclosure law,” which is reviewed under “exacting scrutiny,” although one Judge in the majority wrote a concurring opinion arguing that “strict scrutiny” was the proper standard for review.  Under “strict scrutiny” Missouri would have the burden to show that at a minimum the law has a “substantial relationship” to a “sufficiently important government interest.”  Nevertheless, the Court proceeded to determine the strength of the asserted governmental interest reflecting the seriousness of the actual burdens on Calzones First Amendment free-speech rights by applying the rules for exacting standard.

Next, the Court weighed the burden on Calzones First Amendment rights by examining the time and effort to fill out paperwork and make periodic updates, as required by law, the filing fee and the right to remain anonymous, in order to protect himself from retaliation for his advocacy.  Missouri defends its’s asserted justification based upon “transparency,“ although according to the majority opinion this justification is less than clear.

The Court reasoned that transparency encompasses two ideas.  The first is an interest in sharing information about advocacy activities in order to prevent actual or apparent public corruption. The second is a general interest in having the world know who is trying to influence the work of the General Assembly.  On this record, neither of these justifications survived exacting scrutiny.

With respect to the corruption interest, the Court noted that Missouri failed to establish, in applying the law to Calzone, who neither spends nor receives money in connection with his advocacy that there is a substantial relationship to its anti-corruption interest.  With respect to the transparency question, Missouri also argued that legislators need to know who is speaking in order to determine how much weight to give the speech .  In addition, Missouri argued that the public has a right to know who is speaking, so we can hold legislators accountable for their votes and other actions.  The Court held that these interest are not sufficiently important to justify the burdens placed on Calzones speech; therefore, the state failed to meet its burden in establishing a basis for applying the exacting standard of review.  Incidentally, the majority opinion also noted that the State failed to show that its interest would survive strict scrutiny, if that was the standard to be applied.

Given that Calzone’s political activities did not involve the transfer of money or anything of value, either to him or to anyone else, Missouri’s interest in transparency does not “reflect the seriousness of the actual burden on [his] First Amendment rights.” Therefore, the court concluded that the obligation to register under Missouri’s Ethics Law is facially invalid as applied to Calzone.

Vagueness: Under the Ethics law a person who is designated to lobby is required to register.  Calzone’s claimed that the law is facially invalid because ordinary citizens do not have fair notice of what “designated” means therefore making it a as to who is covered by the law.

The Court reasoned that even though the law does not define or otherwise explain what “designated” means, it is not vague because in the absence of a statutory definition, the Court applied the ordinary dictionary meaning, considering the context in which it is used.  Calzone v. Missouri Ethics Commission, (8th Cir., 17–2654, 11-01/19)

Comment Howard: Some general observation are in order about this case.

• As observed in the introduction, the job of advising local government officials got a lot clearer because of the bright lines established by this case.  If your councilman or other public official does not get paid and does not make an expenditure, there is no requirement to register as a lobbyist.
• This case is a really big deal because it involves an opinion of first impression, severely restricting disclosure requirements.  While the case started out in a relatively innocuous and quiet manner it is now grown to great import likely to attract the attention of many others who want to limit the transparency with respect to lobbying.
• The author of the en banc opinion, Judge Stras, was appointed by President Trump, who was joined by three other Trump appointees and two others who were appointed by President Bush.  The dissent included four Republicans appointed by President Bush along with one Barack Obama appointee suggesting that while the division may be somewhat partisan it may be more about how a person feels about disclosure and the impact of dark money and lobbying.  If the majority opinion is upheld it would substantially limit the effort to rein in lobbying activities. Judge Stras, clerked for Justice Thomas who is known for his “antipathy” to disclosure requirements.

See article in Slate.

• It seems to me that this case might be reviewed by the United States Supreme Court because of the concern about dark money, lobbying, and the need for transparency.

To Shield a Record Under the Sunshine Law the Record Must Have Clear Nexus To Litigation
Facts and Procedure: Wyrick’s mother, Cecile Leggio (“Leggio”), died shortly after sustaining injuries in a motor vehicle accident on December 31, 2016.  The accident occurred at the intersection of Ralston Avenue and 67th Street in Raytown, Missouri.  On January 13, 2017, The Gorny Law Firm sent a notice of claim to the City of Raytown on behalf of the Leggio family pursuant to Section 82.210.

Next, The Gorny Law Firm sent a request for records under the Sunshine Law to the City of Raytown’s city clerk’s office.  The request was for the following records:

• All records pertaining to complaints about the safety of, or accidents occurring at or around, Ralston Avenue and 67th Street

• All records pertaining to the design of the intersection of Ralston Avenue and 67th Street

• All records pertaining to the traffic or other diagnostic studies conducted at the intersection of Ralston Avenue and 67th Street

Henry, the City Clerk, then sent a letter stating that the request for records was denied under the Sunshine Law pursuant to Section 610.021.1., which authorizes a public governmental body to close meetings, records and votes, to the extent they relate to the following:

(1) Legal actions, causes of action or litigation involving a public governmental body and any confidential or privileged communications between a public governmental body or its representatives and its attorneys.

As a follow up, The Gorny Law Firm sent a second request for records under the Sunshine Law to the City of Raytown, this time to the public works department, reiterating its earlier request for the records.  On August 21, 2017, Henry sent an email stating that, as had been the case in her July 19, 2017 letter, the request for records under the Sunshine Law was denied pursuant to Section 610.021.1, the exception legal actions, causes of action or litigation.

Since no records were disclosed by the City of Raytown, Wyrick field a petition in the circuit court against Henry in her official capacity.  The petition sought a declaration that Henry purposefully violated the Sunshine Law; an injunction requiring disclosure of the requested records; the assessment of a civil penalty in the amount of $5,000; and an award of attorneys’ fees and costs.

Following a bench trial, the trial court entered a judgment imposing a $4,000 penalty on the City of Raytown for Henry’s knowing and purposeful violations of the Sunshine Law, finding that “the evidence clearly established four separate and distinct violations,” and “it is appropriate that a penalty be assessed with regard to each such violation.”  The trial court also ordered the City of Raytown to pay The Gorny Law Firm $38,550 in attorney fees plus additional attorney fees for the appeal amount.  Henry filed an appeal to the Western District.

Analysis- To Shield a Record It Must Have Clear Nexus to Litigation:
Henry, the City Clerk, argued that all of the records, she was ordered to disclose to Wyrick, were exempt from disclosure, under the exceptions in Section 610.021(1), for legal actions, causes of action or litigation.  The City Clerk argued that all public records in the City’s possession, requested by Wyrick, were exempt from disclosure to Wyrick since these records related to threatened litigation because Wyrick’s had provided notice of a claim at that interstation related to an automobile accident.
The City admitted that if anyone other than Wyrick, had asked for the records that they would have been released.  The trial court disagreed with this assertion by the City, concluding that application of Section 610.021(1) depended on the nature of the record itself, and not on the person making the request.  On appeal the Western District, noted that in essence, the exception claimed by the City Clerk depended on the identity of the person making the Sunshine Law request, rather than the nature of the record itself.  The opinion of the Court in this case, that disclosure of the record did not depend on who was asking, was an issue of first impression, although it relied on an earlier 1996 opinion in Tuft, by the Eastern District also relied on by the City.
The Tuft case, recognized that Section 610.021(1) focused on the inherent nature of the record itself by requiring a “clear nexus” between the record sought and actual or threatened litigation, which is a constant, divorced from the identity of the person requesting the record, and from whether a public governmental body has been placed on notice of possible litigation.  In this case, Wyrick asked for records pertaining to complaints about the safety of or accidents occurring at or near the intersection when the accident occurred; records pertaining to the design of the intersection; and records pertaining to traffic or other diagnostic studies at the intersection.  The Court noted that while these records would be discoverable in a lawsuit there was nothing about the records inherently related to pending or threatened litigation.

In Tuft, the Eastern District recognized that:

… public records do not have a “clear nexus” to litigation merely because they could be relevant (that is, discoverable or admissible) in litigation threatened by a requesting party.  Rather, when the focus is placed on the nature of the record itself as required by section 610.021(1), a “clear nexus” exists only in those narrow instances where the record by its inherent nature “relates to” pending or threatened litigation–a determination that is not influenced by the identity of the person making a Sunshine Law, or by whether the public governmental body has been placed on notice of threatened litigation.

The Western District, noted that the opinion in the Tufts case urged caution in not overreading the exception for legal actions, causes of actions or litigation, otherwise the exception would swallow the general rule that public records should be open because this provision could be cited as a basis for closing virtually any record. Consequently, the Court found that the City failed to establish a clear nexus between the requested records and potential litigation.

City Clerk Knowingly and Purposefully Violated the Sunshine Law: First, the Western District noted that in order to prove a knowing violation of the Sunshine it is necessary to show that the city official knew that its failure to produce the report violated the Sunshine Law.  Furthermore, in order to prove a “purposeful” violation a party must show that the defendant “purposely violated the law with a “conscious design, intent, or plan to violate the law and did so with awareness of the probable consequences.”  In this case, the Western District examined the evidence noting fact the City Clerk implemented a policy to refuse or produce any of requested document to any citizen, if that citizen had filed a notice of claim against the City, regardless of the nature on the document requested.

The Western District, found that there was substantial evidence to support the trial court’s finding, as shown by the deposition of the City Clerk.  The City Clerk admitted that she did not even conduct a search for the records. She admitted in her deposition that her actions were knowingly and voluntarily, even though it was done on advice of counsel representing the City in this case.  In another similar cases, where the City had been notified of a claim concerning an accident at an intersection the City Clerk contacted the City Attorney who advised her to search and produce the records as requested.  In this case, the Clerk on advice of the attorney representing the City, took the opposite position, that once notice of possible litigation against the City had been given that a claim against the city might be made she would not produce “any public records,” notwithstanding the nature of the record.  The evidence supported the violation was knowing because the City Clerk having been previously advised by the City Attorney in a similar record request and she did not seek clarification from the current City Attorney or the Attorney General nor did the City file a declaratory judgment as provided by the safe harbor provision in the Sunshine Law.  Wyrick v. Henry, (WD82557, 11/12/19)

Comment Howard: This case is particularly important in determining how to avoid catastrophic mistakes in defending a Sunshine Law request.  I thought that the City Clerk got really hammered in her deposition making it, in my opinion, impossible to defend the City’s position.  Clearly, as the City Clerk admitted, refusing to even collect the records and examine the records to determine if they are protected from disclosure is not defensible (the Clerk admitted her violations were “knowingly and purposeful).

The Opinion makes it clear that the City cannot differentiate between a person who threatens litigation and others in determining whether or not a record is closed.  The record under consideration has to be something more than a record that is discoverable.  It has to be, something that if disclosed subjects the city to potential and additional litigation, like the Tuft case.  In the Tuft case, the court was persuaded to keep the record closed because of potential litigation, (although I have a lot of uncertainties about how to better describe records that are entitled to the benefit of the litigation exception in the Sunshine Law.)

Second, if there is doubt about whether or not the record can be closed the Court made it clear that local government can use the safe harbor provision in the Sunshine law by asking for an opinion from the City Attorney, the Attorney General or by filing a request for declaratory judgment protecting it against liability.  Interestingly, in this case, while the City was defended in the lawsuit by outside counsel, the City did not attempt to use the safe harbor provisions. Interestingly, the deposition of the City Clerk showed that she had received a different opinion from the City Attorney in another similar matter.  Furthermore, the Court called the City’s claim as “colorable ” certainly lending itself to using the safe harbor provisions of the law.  In the last year, we have witnessed a number of claims (some successful and others unsuccessful) involving provisions of the Sunshine Law, which in my mind provide some pretty good guidance.  This case seems to me to more clearly resemble the case involving the prosecuting attorney for Cole County, who did nothing to collect the records that were requested.  I thought that the description in the appellate court opinion in the Cole County prosecutor case, as to how to best proceed, constituted best practices.

It seems to me that there was a lot of confusion due to the fog of the legal battle.  The Court recognized, in its opinion, that the City had a “colorable claim” allowing in my mind for the City to simply collect the records, examine them and file the records with the Court requesting a declaratory judgment.  Of particular note in this case is that the advice of the legal counsel defending the City was insufficient to protect the city official for me knowing and purposeful violation, which is no small matter and of major concern to the attorney representing the City.

I was also surprised, to learn that about 30% of the City Clerk’s time was spent on Sunshine Law requests.  Frankly, I was also embarrassed when I read the deposition of the City Clerk in this case.   It was like she was hung out to dry in a case that was very embarrassing (in my mind) for the Clerk and the City.

The August 2018 MMAA Newsletter discusses two cases involving sunshine violations that are potentially knowing in purposeful.

In addition, I have a post summarizing five cases on knowing or purposeful violations of the Sunshine Law, which may be of interest.

Kansas City Wins Trash War
Congratulations to the Kansas City Law Department, for their victory in Sophian Plaza Association v. City of Kansas City, (SC 97626, 10/15/19).  In this case, the Missouri Supreme Court overturned a Western District Court of Appeals opinion, which held that the City was liable in compensatory damages in the amount of $10,274,000 plus attorney’s fees in the amount $1,362,000 and $59,000 in expenses for breach of contract.  Special kudos to Tara Kelly, who wrote and argued the case for Kansas City and for IMLA who filed an amicus brief supporting the City in this matter and for the participation of Allen Garner.  I thought that the lawyering in this case seemed exceptional and the win by KC cannot be overstated considering the massive judgment that was overturned.  If you are ever interested in the merger of judgments this is a great case to begin your research.  I never encountered this issue in my career and do not think it is part of the day to day practice of municipal law.  A summary of the opinion by Matthew Gigliotti, Associate City Attorney for Kansas City is as follows:

The Missouri Supreme Court reversed the trial court, holding that Plaintiff’s breach of contract claim is not viable because the agreement on which they base their claim was merged into the 1976 modified judgment.  Under the law of merger, the parties voluntarily surrender their contract, which merges into the judgment and ceases to exist.  So when the parties jointly asked the circuit court to merge their agreement into a judgment, and the circuit court complied with their request, the rights the agreement established can be enforced only through a contempt proceeding.  Additionally, because no member of the current Plaintiff class was a party for whose benefit the 1976 modified judgment was entered, the Plaintiff class cannot bring contempt proceedings to enforce that judgment. Although the judgment extends benefits to others, the circuit court did not certify a class in the original litigation, and its 1976 modified judgment can be enforced only by the parties to the judgment.

Tasing Is Not a Matter of Convenience
Johnson, a 6-foot 3-inch, 284-pound professional football player, who most recently played defensive tackle for the Minnesota Vikings, was tased by a police officer.  This may be prudent but not smart if the person being tased was arrested for a nonviolent misdemeanor offense; was not resisting arrest nor fleeing; and his hands were visible.  All of these conditions applied to Johnson.  Clearly, tasing Johnson, under these circumstances, was a violation of Johnson’s Fourth Amendment right to be free from the use of excessive force.

In this case, Johnson, after being escorted from the lobby of Club 7 at 2:15 in the morning, was waiting outside of the Club for a car sitting on a seat surrounding a planter.  Officer McCraver, who evicted Johnson from the club saw that Johnson was filming him with his cell phone, while sitting on the bench surrounding the planter. Officer McCraver approached Johnson and knocked Johnson’s cell phone to the ground, shattering it.  Johnson picked it up and sat back down on the planter while all of this was being filmed.  At that point, events ensued, that were disputed leading to the tasing of Johnson two times, one for 9 seconds and the other for 4 seconds. Johnson was arrested for trespass, disorderly conduct and obstructing legal process. After a weeklong trial Johnson was acquitted by a jury on all charges.

Johnson then filed a civil rights lawsuit. With respect to whether Officer McCraver was entitled to qualified immunity the district court accepted Johnson’s version of the facts, finding that he was not entitled to qualified immunity, which decision was appealed to the Eighth Circuit. In reviewing the law, the Eighth Circuit, noted that since 2010 it has been absolutely clear that intentionally tasering of an individual who has been stopped for a nonviolent misdemeanor offense and who is not resisting or fleeing arrest while his hands are visible violates the Fourth Amendment right to be free from the use of excessive force. In Johnson v. McCraver, the Eighth Circuit again reaffirmed this principle.

In the Johnson case there was a dissent where the court noted that qualified immunity for the use of pepper spray in the lobby of Club 7 should have also been denied, since the use of pepper spray is the functional equivalent of the use of a taser.  Nevertheless, the majority opinion felt that the officers had some justification based upon the reaction of Johnson when he was pushed against the exit door.  Johnson v. MCraver, (8th Circuit 18-1148, 11-1-2019)

Comment Howard: Tasing Policy
In the August 2018 MMAA Newsletter I covered the Law of Tasing with respect to whether or not tasing constituted the use of excessive force in violation of the Fourth Amendment.

It seems to me that there is a serious need to change the culture within police departments by recognizing the fact that use of a taser on a person being arrested for nonviolent misdemeanor offense who was not resisting or fleeing arrest, while his hands were visible will result in civil rights lawsuit against the officer, which cannot be defended.  Tasing is not a matter of convenience nor do you act first and ask questions later.  Training and retraining officers who improperly use their taser is critical to changing the culture.  It is very simple to review taser incidents and determine whether or the taser was properly used.  If I was a criminal defense or civil rights attorney I would have on automatic dial the filing of a civil rights case against the city and the officer for improper use of his or her taser.

Tasing Policy – Should be Updated:

  • Intentionally tasering, without warning, of an individual who has been stopped for a nonviolent misdemeanor offense, who is not resisting or fleeing arrest while his hands are visible violates that individual’s Fourth Amendment right to be free from excessive force.
  • No qualified immunity if officer violates above standard under
  • Relevant considerations in determining how much force can be used include: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” The court may also consider whether “the situation is ‘tense, uncertain, and rapidly evolving,’ which would force an officer to make ‘split-second judgments’ about how much force is necessary.” “[F]orce is least justified against nonviolent misdemeanants who do not flee or actively resist arrest and pose little or no threat to the security of the officers or the public.” For a more extensive review of this case click here.

Flash Bang Policy – Should Be Reviewed:
Missouri Lawyers Weekly had an excellent article in its November 18, 2019 edition concerning a $400,000 settlement of a flash-bang suit plus attorney’s fees in the amount of $146,000 plus cost of $34,000.  The Appellate court decision reversing and remanding this case for trial after the denial of qualified was reviewed in the Newsletter on ?/(Reagan can you find the link?)

This case involved the use of a flash that was thrown into a residential home injuring a two-year-old child, during the execution of a search warrant for a murder victims cell phone.  The Kansas City Police Department indicated in the Lawyers Weekly article that the Department routinely reviews use of force incidents and routinely updates its policies and procedures.

  • Flash bangs are explosive devices, which can kill a person, especially a child, if it lands directly on them.
  • “Police call them diversionary devices, we call them bombs.” Judge Posner.
  • Should check to see if innocent individuals are around before deploying the device; that the police have visually inspected the area where the device will be used; and they should carry a fire extinguisher.
  • For an excellent and full discussion of policy issues relating to the use of flash bangs see the discussion:
  • A flash bang policy based upon, use first and ask questions second, is a “dangerously flawed premise.  Law enforcement officers need an actual justification before using a grenade; they cannot rely on the premise that someone dangerous could be in a house that they are entering.

University Of Missouri Loses Sunshine Law Case In Boone County Circuit Court For Overcharges To Produce Public Records
An animal rights group, the Beagle Freedom Project (BFP) requested records involving 179 dogs and cats and was presented with a estimate of the cost for producing these records at more than $82,000 or a cost of $450 per animal.  When the records were not produced the BFP filed a lawsuit in Boone County Circuit Court.  After a bench trial the circuit court ruled that the charges for the records requested did not have a substantial basis in actual practice.  The Court found that the University action was intended to discourage access to these public records by providing BFP with an unreasonable cost estimate that made it prohibitive to proceed with the record request; therefore, the court found that the University action was knowing and fined the University $1000 and required the University to pay attorney’s fees for BFP.  This is to my knowledge the first case finding that an overcharge to produce records constituted a knowing violation resulting in a penalty of thousand dollars in the payment of attorney’s fees.  We will be watching this case to see if there are more developments.  ARME v. University of Missouri, (16BVA – CV10710, 11/8/2019).

State of Missouri Pushing Local Governments On To Case Net
Comment Ragan: As most municipal attorneys are aware the Missouri Supreme Court is making a strong push towards municipal courts using a unified court system, which the court has determined will be Missouri Case Net.  This system might be great for a community that has little or no resources but speaking as a private citizen and not in my capacity as a municipal attorney I find the push frustrating.  Frequently, when we work on this  newsletter we have to find court cases online to research the cases or provide the link to the court cases.  We have both had the same difficulties finding cases using Missouri’s system.  Searches using case names and case numbers for court of appeal decisions often do not turn up results or relevant cases, and even worse there are times like on November 27, 28, and 29 the service was unavailable.  The basis of a free market system is that competition will generate the best products and the best service and a consumer will have a choice to adopt products that meet their needs.  The Supreme Court’s decision will stifle innovation and growth and ultimately that harms citizens.

Medical Marijuana Is Here!!
At this point individuals in Missouri can obtain a license to lawfully posses medical marijuana.  As with anything new there are growing pains.  Recently, there was issue in Rolla that resulted in some public uproar.  Springfield News-leader covered the story on October 29.  (Rolla “Freaked Out” Patient).  Now is a good time to review the marijuana laws.  I’m attaching two documents for you to review.