July Newsletter (Issue 08-2020)

Western District Explains Allowable Charges  For Sunshine Law Requests And Other Issues Relating To The Response
Introduction: As we all know, in recent years, the amount of time spent on responding to Sunshine request has increased, and the amount of time spent on serious litigation around Sunshine requests has increased.  After all, if you violate the Sunshine Law, you can be charged for attorney fees, which will almost always exceed by a considerable amount any penalties the court might assess.

Gross v. Parson, a recent case, involving the Governor’s Office, is one of those cases that highlights the importance of and complexity of these cases.  Initially it looked like there was nothing there, since it was dismissed on a Motion for JOP, but when the case hit the Western District we learned otherwise as the Court peeled back the layers and examined the issues in granular detail.  The 32 page opinion and 8 page concurrence is full of important conclusions of law that need to be  incorporated into your SOP for handling Sunshine Law requests.  Do not overlook this case, as I am sure your adversaries will take note and will test your response against the law established in this case.  I apologize for the length of this analysis but there are lots of important stuff  to unpack.

Facts and Procedure: This litigation involved two separate requests for public records under the Sunshine Law sent by from Elad Gross, to the Governor’s Office.  Gross is running as Democrat for the AG and his comments in the case make it clear this Sunshine Law request has serious political overtones.

First Request: The first request was for “[a]ny and all records, communications, documents, emails, reports, and other material” sent from the Governor’s “Office or received by the Governor’s Office from twenty-seven named individuals or entities after January 9, 2017, allegedly involving “dark money,” which Gross defined “as anonymous campaign contributions [made] to circumvent Missouri campaign finance laws and influence Missouri government and policy. “

On August 23, 2018, the Governor’s Office responded to Gross’s First Sunshine Request, stating that the Governor’s Office was in the process of gathering the records and we that we will be able to provide a response or cost estimate (if applicable) for the records you have requested in approximately one month.”

On September 21, 2018, the Governor’s Office sent a second letter to Gross that stated in relevant part:

We have found 13,659 documents that may be responsive to your request.  The estimated cost for providing these records is $3618.40 (please see enclosed invoice).  Before we begin preparing the information, please forward to this office a check in that amount . . . . Once we receive this amount we estimate that it will take at least 120 business days to complete this request.  We will send the records to you on a disk.  The enclosed invoice estimated that “research/processing” would take 90.46 hours charged at the rate of $40.00 per hour for a total of $3,618.40.

On September 24, 2018, Gross sent a response to the Governor’s Office requesting that the Governor’s Office explain why it was charging the rate of $40.00 per hour (the lowest  rate for attorney’s) instead of the clerical rate.

Second Request: Gross then sent another letter to the Governor’s Office on September 24, 2018 (“Second Sunshine Request”) requesting:

“Any and all records, communications, documents, emails, reports, and other materials sent by or to Office of the Governor’s staff, advisors, contractors, or other agentsinvolving the Office of the Governor’s response or plans to respond to [Gross’s First Sunshine Request].”

On October 12, 2018, the Governor’s Office responded to Gross’s Second Sunshine Request which contained two sets of communications.  Set A consisted of seventeen pages of documents with two pages partially redacted.  Set B consisted of forty pages of documents, none of which were redacted.  All fees relating to the Second Sunshine Request were waived.

Gross then  filed his petition in the circuit court alleging that Governor Parson and Hallford violated the Sunshine Law (“Petition”).  Gross filed eight counts, alleging violations of the Sunshine Law.  The Governor’s Office filed its Answer and subsequently filed a Motion for Judgment on the Pleadings (“Motion”).  The circuit court held a hearing on the Motion and entered a Judgment dismissing the Petition, which was appealed to the Western District.

Analysis: Attorney Fees: Gross argued that the circuit court erred because the Governor’s Office impermissibly charged attorneys’ research fees as a requirement to access public records related to the First Sunshine Request. (Was a violation)

The Court began its analysis by focusing on what fees a governmental body is entitled to assess pursuant to Section 610.026.  This request required a search for records under both subsections (1) and (2), which have different provisions for charging fees.  In an earlier case, the Western District, made it clear that the legislature specifically chose to authorize a per record fee for paper copies in [Subsection (1)].  Similar language is conspicuously absent from [Subsection (2)], which imposes fee limitations for other types of records, records maintained on computer facilities.

The fee provision, contained in Subsection (1), govern only those records enumerated in Subsection (1), and the fee provision contained in Subsection (2) govern the records enumerated therein, which are different types of records; however, because Gross requested both documents and electronic records, his request for documents maintained as paper records, even if those records are capable of being transmitted electronically, is governed by Subsection (1) while Subsection (2) governs his request for electronically stored records.  Because Gross’s First Sunshine Request is potentially governed by both Subsection (1) and Subsection (2), the Court addressed the application of these subsections separately.”

Research – Subsection (1):  Subsection (1) allows a public governing body to assess charges for “search, research, and duplication time.” (emphasis added).  The court concluded that “research” means the “studious inquiry or examination” of requested documents and that the use of an attorney to decide if requested documents are protected from disclosure is an allowable charge at the lowest-paid personnel that could search for and subsequently analyze the documents to properly determine whether information was exempt or nonexempt.  Therefore, it was proper to charge for the time spent by attorney’s in researching the documents.

Staff Time: The charge for staff time under Subsection (2) is limited to the amount of time staff needed to make copies or transfer electronic records at “the average hourly rate of pay for staff of the public governmental body required for making copies.”

The Court held that the Governor’s General Counsel and his or her deputies are staff; however,  their research was unnecessary to providing Gross possession of the records because when the legislature amended this subsection in 2004 it limited  charges to  “staff time required for making copies.”

Conclusion: The Governor’s Office charged $40.00 per hour for “Research/Processing”  for  the First Sunshine Request based upon the lowest rate for an attorney, but the person making the copies receives approximately $19 per hour. Both parties agreed that  the $40 per hour rate was based on an attorney’s time in processing the request, therefore, the Governor’s Office charged an excessive rate for  processing the First Sunshine Request, which was a violation of the Sunshine Law. (Note that concurring opinion does not agree)

Failure  to provide Gross with the earliest time the requested records would be available – (Not a violation): Section 610.023.3 provides that: “If access to the public record is not granted immediately, the custodian shall give a detailed explanation of the cause for further delay and the place and earliest time and date that the record will be available for inspection.”

Gross alleged that  the circuit court erred in entering judgment on the pleadings because he properly pled that the Governor’s Office violated the Sunshine Law when it failed to provide Gross with the earliest time the requested records would be available.

Gross’s First Sunshine Request included language that the Governor’s Office should notify him “in advance of any search or copying if the fees exceeded $100.00.”).  The Western District concluded that it was  unclear how the Governor’s Office was supposed to notify Gross of an exact date when the records would be available, when on its face, the request required the Governor’s Office to provide notice regarding the cost of production and the number of records responsive to each request before it began the process of copying and producing the records.  The Court held that the Governor’s Office responded in the best way possible under these parameters by providing an estimate of the amount of time it would take to produce the records once payment of the estimated cost was made and it was authorized by Gross to begin the process of searching for, copying, and producing the records.

Failure to provide a detailed explanation of why the Governor’s Office required at least 120 business days to produce records. (Violation): Section 610.023.3 requires a governmental body to act upon Sunshine requests “as soon as possible, but in no event later than the end of the third business day . . . . If access to the public record is not granted immediately, the custodian shall give a detailed explanation of the cause for further delay and the place and earliest time and date that the record will be available for inspection.” (Emphasis added)

The response offered no detailed explanation as to why production would be delayed for at least 120 days other than the general statement as to the large number of records that may be responsive to the request.

The Governor’s Office argued for the first time on appeal that the requested records included some documents that are attorney/client privileged and therefore require an attorney to review them before the records can be released.  This response was insufficient because it ignored the statutory language that required a detailed explanation be provided to the party “…in the response to the request.

The Governor’s Office impermissibly redacted portions of records provided to Gross without explanation and without closing the records. (Violation): In its response to the Second Sunshine Request, the Governor’s Office provided no explanation or reason for the redaction of certain portions of the records.  The records were provided with redactions, but the requesting party had no way of knowing why or on what authority the redactions were made.  In its brief, the Governor’s Office argued that Gross’s Second Sunshine Request “clearly involved privileged and closed communications”.

The Western District noted, that the Governor’s Office bears the burden to establish that the redacted material falls within Section 610.021(1), which allows records relating to “(1) Legal actions, causes of actions or litigation involving a public governmental body . . ., ” to be closed.  The person claiming that the record is closed must demonstrate (bears the burden of proof) that the redacted portion of the records are protected as attorney-client.  Furthermore, the Governor’s  Office did not ask the trial court for an in camera review of the records.  Section 610.023.3 requires that if access to the public record is not granted immediately, the custodian shall give a detailed explanation of the cause for further delay and the place and earliest time and date that the record will be available for inspection.”  Therefore, the Governor’s Office violated the Sunshine Law.

The circuit court erred because the Governor’s Office bore the burden to show it complied with the Sunshine Law as it related to Gross’s Second Sunshine Request. (Violation): It is the public governmental body’s burden to demonstrate compliance with the Sunshine Law, after the requester satisfies its initial burden to demonstrate that the body is subject to the Sunshine Law and the body has closed the record.

Section 610.027.2.  provides that:

“Once a party seeking judicial enforcement of sections 610.010 to 610.026 demonstrates to the court that the body in question is subject to the requirements of [those sections] and has held a closed meeting, record or vote, the burden of persuasion shall be on the body and its members to demonstrate compliance with the requirements of [those sections].”

The Governor’s Office again asserted that its redactions were proper as attorney-client privileged communication, and that Gross had the burden to request an in camera review of the redacted materials.  Clearly, the statute provides otherwise; therefore the trial court erred in granting judgment on  the pleadings.

The trial court erred because the Governor’s Office knowingly violated the Sunshine Law in processing his First and Second Sunshine Request:

First Sunshine Request – (No violation):The Governor’s Office has the statutory authority to require payment of estimated costs before it begins to produce records.  Gross failed to pay the estimated cost, and therefore, the Governor’s Office did not have a current obligation to produce the requested records.  Furthermore, Gross instructed the Governor’s Office not to begin production of the records, if the cost would exceed $100.00 until Gross had authorized those expenses.  Because Gross specifically directed the Governor’s Office notify him in advance of producing any documents if the fees would exceed $100, he obviated any current obligation on the part of the Governor’s Office to produce the records. Therefore, the Governor’s Office did not knowingly violate the Sunshine Law with respect to the first request.

Second Sunshine Request (Point has merit- remanded to determine facts): Regarding the Second Sunshine Request, the parties agreed the Governor’s Office was aware of the Sunshine Law’s requirements and that the Governor’s Office failed to produce the redacted portion of the records.  Therefore, the issue is whether the redactions were proper or whether the Governor’s Office had a duty to produce the redacted materials under the Sunshine Law.

The Governor’s Office argued that it properly made limited redactions of privileged and closed material on only two pages and that the facts pled are insufficient to draw an inference the redactions were improper.

Gross and the trial court were incapable of determining whether the redactions were proper until the records had been inspected, particularly the redacted portion. Therefore, the  Western District concluded that when a plaintiff asserts that a redaction is improper that plaintiff has satisfied the pleading requirements of the second element (that the Sunshine Law required production of the requested document).

Because Gross had pled all three elements, he properly pled a claim that the Governor’s Office knowingly violated the Sunshine Law in regard to his Second Sunshine Request.  Questions of fact must still be resolved to determine whether the redactions in the Second Sunshine Request were permissible under Section 610.021 or if Gross can factually establish at trial that the redactions were knowingly impermissible.  Therefore, the trial court erred in entering judgment on the pleadings, because Gross has sufficiently pled the Governor’s Office has committed a knowing violation of the Sunshine Law in processing Second Sunshine Request.  Whether the Governor’s Office can meet its burden to establish that the redacted material is properly closed, and therefore not required to be produced under the Sunshine Law, is a factual question that cannot be determined at this point in the litigation.

Did the Governor’s Office purposely violate the Sunshine Law in processing his First Sunshine Request. (No Violation)

“To purposely violate the Sunshine Law a member of a public governmental body must exhibit a ‘conscious design, intent, or plan’ to violate the law and do so ‘with awareness of the probable consequences.'”

Gross did  not plead any facts to indicate that the Governor’s Office was aware of the consequences, if any, of its redactions.  Gross merely pled that Gross “has suffered delay in his investigation into corruption in Missouri government[] and has undertaken substantial costs to enforce Missouri’s Sunshine Law.”  Nor did Gross plead any facts to indicate the Governor’s Office was aware that its redaction would delay Gross’s investigation nor has he plead that the Governor’s Office was aware that Gross had incurred substantial costs pertaining to the Second Sunshine Gross’s bare assertions were insufficient to allege a purposeful violation of the Sunshine Law as it pertains to the Second Sunshine Request.  Therefore, the trial court correctly entered judgment on the pleadings that Gross failed to adequately plead facts to demonstrate a purposeful violation of the Sunshine Law stemming from the processing of the Second Sunshine Request.

Concurring Opinion  – Attorney’s May Be Staff: The concurring opinion is also important because it makes a very good argument that there may be charges for work performed by attorney’s, although it can only be charged at the clerical rate, not at the rate for attorneys.  Gross v. Parsons, (WD83061, 5/26/20).

Comment Howard: The results in this case are stunning and a major setback for the Governor’s Office, showing that the Governor’s Office did not have a handle on the fine details of how to respond to a Sunshine Law request.  I thought that the second request for records, asking for records pertaining to the response was brilliant.

Probable Cause May Be Established After The Vehicle Is Stopped Based Upon The Officer’s Observations And The BAC Test
Facts and Procedure: St. Louis County Police Officer Shaw stopped 18-year old Groom after his stationary radar clocked him driving 70 miles per hour in a 55-mile-per-hour zone.  When he approached Groom, Officer Shaw observed his eyes were bloodshot, glassy, staring, and dilated; his breath emanated a strong odor of alcohol; he was stuttering and mumbling his speech; and his mood swiftly changed from calm to yelling and using profanity.  A search of the vehicle revealed open and closed containers of alcohol.  Officer Shaw administered a portable breath test, which was positive for alcohol.  He further observed multiple signs of impairment when conducting field sobriety tests.  As a result, Groom was placed under arrest for driving while intoxicated (“DWI”).  At the police station, Groom was given another breath test, which indicated his blood alcohol content (“BAC”) was 0.079%.

Thereafter, Groom’s privileges to drive a motor vehicle was suspended.  Following administrative review of the order, the suspension was sustained.  Subsequently, Groom filed his petition for a trial de novo.  At the hearing the Director of Revenue (“Director”) offered Exhibit A into evidence which contained documents related to the investigation and arrest of Groom.  Exhibit A included, among other records, the notice of suspension, the alcohol influence report, the police narrative and arrest report, the BAC results, and citations for operating a motor vehicle while in an intoxicated condition and speeding.  Neither party called witnesses.  Groom objected to the admission of any radar evidence of speed based on lack of proper foundation.  The objection was overruled.  The trial court issued its order and judgment sustaining the suspension of Groom’s driving privileges.  Groom appealed to the Eastern District.

Analysis: On appeal, Groom asserted that the trial court erred when it overruled his foundational objections to the admission of the radar evidence, because without evidence of speeding there was no probable cause to stop the vehicle.

Groom, who was under 21 years of age,  argued that Section 301.505.1, which applied to persons section under 21 years of age, required the police officer to have probable cause to believe Groom “…violated a state, county or municipal traffic offense…”  and that ‘…he was driving with a blood alcohol content of two-hundredths of one percent or more by weight.”  Groom argued that if his objections to the foundational radar evidence was correct, the police officer would not have had probable cause to arrest Groom for a  violation of  a state, county or municipal traffic offense.  This argument failed because probable cause can be established after the stop, as further explained below.

Specifically, Groom attempted to carve out an exception requiring the Director to prove there is probable cause to merit the suspension or revocation of a person’s license when the driver is less than twenty-one with a BAC between .02% and 0.08%.  Relying on Baldwin v. Dir. of Revenue. In Baldwin, the Missouri Supreme Court concluded, that Section 301.505.1 had two separate clauses, one that applied to persons over 21 and another that applied to persons under 21 years of age. Furthermore, another Missouri Supreme Court case held that the equal protection clause did not prohibit  the state from granting “…special safeguards to younger drivers who are subject to special sanctions that are not applicable to adult drivers,” raising the possibility that the under age provision might be a special safeguard to protect minors.

The Eastern District, noted that Barrett v. Dir. of Revenue, an earlier Eastern District case, found probable cause “…if an officer observes the illegal operation of a motor vehicle and also observes indicia of intoxication when he comes in contact with the driver.”  Therefore based on the Barrett, opinion there was probable cause to arrest Groom, regardless of whether or not he was speeding.  Probable cause may be established after the vehicle is stopped based upon the officer’s observations and the BAC test.  The Eastern district concluded that to adopt a different interpretation would produce an absurd result contrary to the intent of the legislature.  Groom v. Director of Revenue, (ED107869, 06/02/20)

Plaintiff’s Stated A Cause Of Action For Declaratory Judgment Relating To Right To Vote During COVID-19 Pandemic But Lots More To Be Determined
Facts and Procedure: On April 17, 2020, in response to the severe acute respiratory syndrome coronavirus (COVID-19) pandemic and the upcoming August primary and November general elections, petitioners sought injunctive and declaratory relief to secure the ability to exercise their constitutional right to vote, but to do so without leaving their homes to reduce the risk of contracting or spreading COVID-19 during the process.  They filed a four-count petition for injunctive and declaratory relief in Cole County Circuit Court.

Plaintiff’s Count I sought a declaration that the authorization in Section 115.277.1(2), which permits any registered Missouri voter to vote absentee without notarization if they are unable to vote in person due to confinement, due to illness, or disability, applies to persons who are confining themselves at home due to COVID-19.  Count II sought a declaration that the inconsistent interpretation of Section 115.277.1(2) by local election authorities regarding whether it authorized voters to vote absentee by mail without notarizing their ballots violates the Equal Protection Clause of the Missouri Constitution, applies to persons who are confining themselves at home due to COVID-19.   Count III sought a declaration that allowing some, but not all, voters to vote violated the right to vote provided by the Missouri Constitution.  Count IV sought a declaration that, in the same situation, allowing some voters to vote absentee by mail without notarization but requiring others to obtain in-person notarization imposes costs of obtaining notarization that the other voters need not face thereby violated the right to vote provided in the Missouri Constitution.

Defendant’s filed a motion to dismiss, which the trial court sustained and Plaintiff’s appealed to the Missouri Supreme Court.

Analysis: The Court noted, much of the original lawsuit shifted, when the Governor signing  SB 631, an emergency bill that was effective immediately for the rest of 2020 in the state primary and general elections.  SB 631 provides some relief to voters from having to appear personally or having a notary personally acknowledge the voters signature.  SB 631  authorizes all “at-risk voters” as defined  to cast a mail-in ballot in the 2020 primary and general elections. “At-risk voters” are defined as voters who are in an at-risk category for contracting or transmitting severe acute respiratory syndrome coronavirus who: (1) Are sixty-five years of age or older; (2) Live in a long- term care facility licensed under chapter 198; (3) Have chronic lung disease or moderate to severe asthma; (4) Have serious heart conditions; (5) Are immunocompromised; (6) Have diabetes; (7) Have chronic kidney disease and are undergoing dialysis; or (8) Have liver disease.

After determining that the petition pled the necessary elements for a declaratory judgment the Court held that the trial court erred in dismissing the case and entering a judgment on the merits.  The Court remanded the case for further proceedings, noting that due to new circumstances (legislation) some of the  issues may have been resolved and if not, the Plaintiff’s may seek leave to amend the petition.  Missouri State Conference of the National Association for the Advancement of Colored People v. State of Missouri, (SC98536, 06/23/20).

Comment Howard: So where does this leave us?  While SB 631 provides some relief to  a large swath of voters, it does not satisfy the objective of the Plaintiff’s, in this case, which is to secure the right to mail in ballots by all voters, in order avoid the risk of exposure to COVID 19.  In addition, the requirement of personally appearing before a notary has been mitigated to a certain extent by the passage of House Bill No. 1655, which allows for remote online notarization.  I think this is where we will end up since I am not hopeful that this lawsuit will succeed.  Nevertheless, the pandemic has created a factual situation where voters may be denied their right to vote, guaranteed by Article VIII, Section 2 of the Missouri Constitution and the Free Speech Clauses in the Missouri and Federal Constitutions.  For a comprehensive review of cases and analysis on the right to vote on NPR, written by Nina Totenberg see Concerns About Voting.

What Does “Per Curium Opinion” Mean?
What  is a per curium  opinion or order?  I have seen suggestions that a per curium opinion is a unanimous opinion.  Recently, I read a post in the SCOTUSblog  that does a great job of explaining the meaning of “per curium.”  All it means is that the ruling or  opinion is unsigned and that 5 justices or judges voted for the ruling or opinion.  Judges who voted for the opinion or order are not identified.  It does not mean that the opinion or order is unanimous.  Of course, we are always counting                                                                          votes and this blog gives you an idea how to do that, although you can never be sure who voted yes.  You may access this article  by clicking here.  Josh Blackman, Invisible majorities:  Counting to nine votes in per curium cases, SCOTUSblog (Jul. 23, 2020, 3:23 PM), 

 Hunch Or Reasonable Suspicion For An Investigatory Stop?  (Think Portland)
Facts and Procedure: A Kansas deputy sheriff (Officer) ran a license plate check on a pickup truck, discovering that the truck belonged to respondent Glover and that Glover’s driver’s license had been revoked.  The Officer pulled the truck over because he assumed that Glover was driving.  Glover was in fact driving and was charged with driving as a habitual violator.  The parties entered into a bare-bones stipulation as to the facts:

1. Deputy Mark Mehrer is a certified law enforcement officer employed by the Douglas County Kansas Sheriff ’s Office.

2. On April 28, 2016, Deputy Mehrer was on routine patrol in Douglas County when he observed a 1995 Chevrolet 1500 pickup truck with Kansas plate 295ATJ.

3. Deputy Mehrer ran Kansas plate 295ATJ through the Kansas Department of Revenue’s file service. The registration came back to a 1995 Chevrolet 1500 pickup truck.

4. Kansas Department of Revenue files indicated the truck was registered to Charles Glover Jr.  The files also indicated that Mr. Glover had a revoked driver’s license in the State of Kansas.

5. Deputy Mehrer assumed the registered owner of the truck was also the driver, Charles Glover Jr.

6. Deputy Mehrer did not observe any traffic infractions, and did not attempt to identify the driver [of] the truck. Based solely on the information that the registered owner of the truck was revoked, Deputy Mehrer initiated a traffic stop.

7. The driver of the truck was identified as the defendant, Charles Glover Jr.”

Glover moved to suppress all evidence from the stop, claiming that the Officer lacked reasonable suspicion.  The District Court granted the motion, but the Court of Appeals reversed.  The Kansas Supreme Court in turn reversed, holding that the Officer violated the Fourth Amendment by stopping Glover without reasonable suspicion of criminal activity.  According to the Kansas Supreme Court, the Officer did not have reasonable suspicion because his inference that Glover was behind the wheel amounted to “only a hunch” that Glover was engaging in criminal activity.  The Kansas Supreme Court further explained that the Officer’s “hunch” involved “applying and stacking unstated assumptions that are unreasonable without further factual basis,” namely, that “the registered owner was likely the primary driver of the vehicle” and that “the owner will likely disregard the suspension or revocation order and continue to drive.” The United States Supreme Court granted certiorari.

Analysis: Justice Thomas teed up the question:  Whether a police officer violated the Fourth Amendment by initiating an investigative traffic stop after running a vehicle’s license plate and learning that the registered owner had a revoked driver’s license?

The Court noted that under the Court’s precedents, the Fourth Amendment permits an officer to initiate a brief investigative traffic stop when he or she has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.”  A mere ‘hunch’ does not create reasonable suspicion, although the level for reasonable suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence, or probable cause.  Reasonable suspicion “depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”  This allows officers to make “commonsense judgments and inferences about human behavior.

In this case, the Officer knew before initiating the stop that the registered owner of the truck had a revoked license and that the model of the truck matched the observed vehicle.  This allowed the Officer to draw the commonsense inference that Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop.  The reasonable suspicion inquiry “falls considerably short” of 51% accuracy.  In addition, the various grounds for revocation in Kansas State law lend further credence to the inference that a registered owner with a revoked Kansas driver’s license might be the one driving the vehicle.  Furthermore, the Officer did not rely exclusively on probabilities.  He knew that the license plate was linked to a truck matching the observed vehicle and that the registered owner of the vehicle had a revoked license.  Based on these minimal facts, the Officer used common sense to form a reasonable suspicion that a specific individual was potentially engaged in specific criminal activity, driving with a revoked license.

The Court added a cautionary tale.  Traffic stops of this nature do not delegate to officers “broad and unlimited discretion” to stop drivers at random.  Nor do they allow officers to stop drivers whose conduct is no different from any other driver’s.

Nevertheless, based on the above the Court held that combining database information and commonsense judgments in this context is fully consonant with this Court’s Fourth Amendment precedents.

Justice Kagan wrote a concurring opinion supporting the majority opinion but limited her concurrence to the facts in this case, which are narrow noting that “other circumstances” like the age or sex of the driver could make a difference with respect to the authority to make a stop.  Justice Sotomayor dissented arguing that the majority gave the officer free rein to stop a vehicle involved in no suspicious activity simply because it is registered to an unlicensed person.  Nowhere in the stipulated facts was there any evidence that the Officer had any informed belief “…about the propensity of unlicensed drivers to operate motor vehicles in the area, let alone that he relied on such a belief in seizing Glover.”  The dissent concluded that the stop was based merely on a guess or a “hunch” about the driver’s identity.  Kansas v. Glover, (U.S. 18-556, 04/06/20)

Comment Howard:  You may want to update your police departments SOP to include this case.  This case is tricky because it is so narrow.  As the concurring opinion noted, if the driver is a man but the owner is a woman then there is no reasonable suspicion.  The same situation could apply to an owner who is young but the driver is old.  SOP should note these possibilities, since the rule is not absolute.

Frankly, I think the concurring opinion got it right.  I think you need to establish through testimony, with a witness with some degree of expertise, that it is common for drivers whose license has been revoked will be operating their own vehicle.  I like the idea of getting these drivers off the road, but issues of privacy haunt me.

What Is Or Was Going On In Portland? 
Lots of people are wondering what is or was  going on in Portland, including myself.  It seemed to me (and lots of others) that there was an arrest, after all federal officers took a protester into a van, carted him away, and held him for 20 minutes before releasing him without charges.  The Federal Protective Service claimed that they were simply taking a protester into custody for questioning, which borders on the issues covered above in Kansas v. Glover.  Was the federal officer acting on a hunch or did he have reasonable suspicion?  For a considered and reasonable analysis of what is going on you might find a recent blog in Lawfare.com is helpful.  Unpacking DHS Troubling Explanation.

From One Of Our Favorite Legal Scholars:
Lisa Soronen continues to keep us all well informed.  She has compiled for the legal community a new reservoir of information about cases and legal issues.

The presence of federal officers in Portland has generated significant litigation.  Two of the cases brought so far get to the heart of a big question for local governments nationally:  what authority do federal officers have to do police work in local communities?

Both lawsuits have been filed very recently. The federal government hasn’t yet responded to either complaint, which lists the bare bones facts and legal arguments. Both complaints allege, among other violations, that federal officers exceeded their authority under a little-known statute, 40 U.S.C. § 1315, when they became involved in quelling protests.  40 U.S.C. § 1315 is entitled “Law enforcement authority of Secretary of Homeland Security for protection of public property.”

The complaint in Don’t Shoot Portland v. Wolf points to the following language in § 1315(b)(1) which states that the Department of Homeland Security Secretary may designate specific federal employees “as officers and agents for duty in connection with the protection of property owned or occupied by the Federal Government and persons on the property, including duty in areas outside the property to the extent necessary to protect the property and persons on the property.”

Don’t Shoot Portland argues that § 1315(b)(1) doesn’t allow federal officers to act beyond “the extent necessary” to protect federal property and persons on the property.  According to Don’t Shoot Portland, DHS deployed officers “according to a policy to intimidate and deter protesters because of their views and beliefs through surveillance; the use of militarized and unmarked force; the excessive deployment of crowd-control measures such as tear gas, pepper-spray balls, and less-lethal munitions; and warrantless arrests or custodial detentions without probable cause.”

In Western States Center v. Department of Homeland Security, Western States Center points to § 1315(b)(2) which states that while “engaged in the performance of official duties” federal officers and agents may “enforce Federal laws and regulations for the protection of persons and property” and “make arrests without a warrant for any offense against the United States committed in the presence of the officer or agent or for any felony cognizable under the laws of the United States if the officer or agent has reasonable grounds to believe that the person to be arrested has committed or is committing a federal felony.”

Western States Center argues this portion of the statute allows federal officers to make warrantless arrests only of persons who the officer “(1) directly witnesses committing a federal crime, or (2) reasonably believes is committing or has committed federal felonies.”

According to Western States Center, “[b]y conducting law enforcement activities on the sidewalks and streets of Portland, as opposed to on the premises or within the curtilage of government property, defendants have encroached upon powers explicitly reserved to the State of Oregon, and to Oregon’s citizens, pursuant to the Tenth Amendment,” and exceeded their authority under § 1315(b)(2).

In Index of Newspapers v. City of Portland, a number of journalist received an injunction preventing city and federal officials from “assaulting news reporters, photographers, legal observers, and other neutrals who are documenting the police’s violent response to protests over the murder of George Floyd.”  The federal government defendants argued that journalists have no right to stay, observe, and document when the government “closes” public streets.  The court concluded this argument doesn’t help the federal defendants because they “are not the entities that ‘close’ state public streets and parks; that is a local police function.”

Recently, Lisa Soronen provided members with the 2019-20 Supreme Court Review for Local Governments. This is an excellent resource. Thank you, Lisa.   You may access this resource here.  Supreme Court Review