Case Update: Legislative Process Violated Missouri Constitution

The Missouri Supreme Court issued its ruling in the case where The Gathering Tree had challenged legislation passed in 2022 that adopted new laws regarding the non-permissive use of state property, parking areas, camping facilities, and shelters for homeless individuals. The final bill that was adopted was titled as changes relating to “political subdivisions” and included provisions related to political subdivisions. The bill had gone through revisions during the legislative process and had become more expansive.

The Gathering Tree is an advocacy group serving homeless individuals. It sought declaratory relief and injunctive relief. The Gathering Tree argued that the bill violated the Missouri constitutional requirement of a single subject and clear title. The trial court sustained the state’s motion and concluded the bill was constitutionally valid.

The specific challenge related to Article III, Section 23 of the Missouri Constitution which provides, “No bill shall contain more than one subject which shall be clearly expressed in its title.” 

The Court’s test for determining whether a bill violates the single subject requirement of Article III, Section 23, has essentially been the same since 1869. A bill does not violate the single subject requirement ‘[s]o long as the matter is germane, connected, and congruous. In other words, “the test for whether a bill addresses a single subject is not how the provisions
relate to each other, but whether the provisions are germane to the general subject of
the bill. The provisions must fairly relate or have a natural connection with the subject.

When the court applied the rule it found the provisions being challenged did not fairly relate or have a natural connection with the subject and have a natural connection with a wholly different subject of homelessness.

The court then considered whether the rest of the legislation could be severed or if the entire bill should be struck down by the court. When the legislature violates one of the constitution’s procedural bill passage requirements, judicial severance will be appropriate only when “the Court is convinced beyond a reasonable doubt that the legislature would have passed the bill without the additional provisions and that the provisions in question are not essential to the efficacy of the bill.”

The court found no evidence that passage would have occurred without the inclusion of the provisions the court found violated the constitution. As a result the court found the legislation in its entirety to be invalid. Byrd v. The Gathering Tree, (SC100045, 12/19/2023)

Case Update: Duty To Protect Parking Lot

Steven Harner was a guest at Mercy hospital, visiting his daughter who was at the hospital. Harner’s driver side door did not lock and he left a loaded pistol in the vehicle. When Harner returned to his vehicle he observed an unknown woman in his vehicle and he yelled at the woman to exit the vehicle. The woman shot Harner in the neck, using a gun he had left in the vehicle. The injury left Harner with permanent nerve damage.

Prior to Harner being shot, the woman who shot him, had arrived at the hospital with her boyfriend, she was high on methamphetamine, and she got into another unlocked vehicle of a couple that had been in the emergency room. When the couple left the emergency room they observed the woman in their vehicle and they reported her behavior to a Mercy security guard and the police were contacted to investigate the incident. The incident was listed as a “Priority 2” in the Mercy security reporting system. Mercy did not conduct a safety investigation immediately upon notification. In addition to not conducting an investigation related to the initial report Mercy during this time frame did not conduct any routine security checks which was a violation of the hospital policy. Harner sued Mercy hospital for negligence under the standard that the hospital knew or had information from which in the exercise of ordinary care, it could have known the woman was present and posed a danger to Harner. Harner prevailed at trial. On appeal the matter was transferred from the Court of Appeals to the Missouri Supreme Court

As a general rule, businesses have no duty to protect invitees from the criminal acts
of unknown third persons. This is because such activities are rarely foreseeable.
There are limited exceptions to the general rule, such as when special facts and
circumstances render injury foreseeable. One such exception arises when a business “knows, or has reason to know, that a third party is harming or is about to harm an entrant.” This exception is sometimes referred to as the known third person exception. Under the known third person exception, a “duty may arise when a person, known to be violent, is present on the premises or an individual is present who has conducted himself so as to indicate danger and sufficient time exists to prevent injury.”

The Court explained the known third person exception “concerns when a business knows or has reason to know a specific third person is both (1)on its premises and (2) dangerous[.]” However, not every crime renders it reasonably foreseeable that a person is dangerous as contemplated by the very limited known third person exception. The exception’s focus on foreseeability would be lost if having knowledge of any previous criminal act of a known third person is sufficient to incur liability for any subsequent dangerous and criminal acts that person commits. In this case the actions prior to the shooting did not trigger the known third person exception to the general rule that businesses have no duty to protect invitees from the criminal acts of third parties. Harner v. Mercy Hospital, (SC100030, 12/19/2023)

Comment Howard: Under Missouri law the local government would be protected by qualified immunity.  

Qualified Immunity Where Officer’s Conduct Was Not Directed At Injured Party

Heather De Mian was documenting protest in the city of St Louis on September 29, 2017. De Mian was taking photographs, videos, and livestreaming other protestors following officers. Officer Olsten became involved in verbal confrontation with Amir Brandy after he had detained another protestor. Officer Olsten deployed pepper spray on Brandy and when he deployed the pepper spray he also sprayed other people in the crowd in the vicinity of Brandy. De Mian was more than 20 feet away from Officer Olsten but was near the edge of the spray arc. De Mian sued Officer Olsten and the City for violating her First and Fourth Amendment right under 1983 and in addition brought several state law claims for discharging the pepper spray. The district court granted qualified immunity finding that no reasonable jury could conclude his actions were motivated by De Mian’s First Amendment conduct. The court also granted summary judgment to the defendants on the remaining federal claims and declined to exercise supplemental jurisdiction over the state law claims.

The 8th Circuit Court Appeals analyzed the claim related to qualified immunity. Finding that Officer Olsten gets qualified immunity unless (1) the facts demonstrate the
deprivation of a constitutional or statutory right, and (2) the right was clearly
established at the time of the deprivation. De Mian must under the circumstances show retaliation by demonstrating that (1) she engaged in protected expression, (2) Officer Olsten took an adverse action that would chill a person of ordinary firmness from continuing the
activity, and (3) there was a but-for causal connection between Officer Olsten’s
retaliatory animus and her injury.

Because De Mian did not point to any facts showing that Officer Olsten singled her out, either individually or as part of a particular group, her claim failed “there was no evidence in the record that the plaintiffs had any interaction with Officer Olsten, that Officer Olsten was aware of their presence, or that they did anything to differentiate themselves from the
other protestors in the crowd.” The court found the facts were distinct from other cases in
which it affirmed the denial of qualified immunity where the officers plausibly
directed their retaliatory conduct directly at the plaintiffs for their First Amendment
activities. De Mian v. City of St Louis, (8th Circuit 22-3000, 11/16/2023)

Protestor Dispersal Was Not Clear Violation Of Constitutional Rights

Protestors asserting their First Amendment right gathered to protest the construction of a pipeline carrying oil from North Dakota to Illinois. The focal point of the protest was a highway bridge in Morton County, North Dakota. In response to the protest the North Dakota Department of Transportation closed the bridge, blocked the bridge, and placed no trespassing signs on the bridge. Multiple local police agencies became involved in the response to the protest.

On November 16, 2016, altercations took place between the police agencies and the protestors. The police used intermittent force to disperse the protestors and prevent them from breaching a barricade. The officers used tear gas, rubber bullets, lead filled bean bags, and water hoses during the encounter as a means to disperse the protestors.

Some of the participants in the protest filed suit alleging that the officers violated their constitutional rights under the Fourth and Fourteenth Amendment.

The court concluded that the protestors did not establish that the individual officers
violated a clearly established right under the Fourth Amendment, because it was not
clearly established as of November 2016 that use of force to disperse the crowd was
a seizure. The protestors did not develop an argument that the actions of the officers
clearly “shocked the conscience,” or otherwise violated a clearly established right of the protestors under the Due Process Clause. The district court properly dismissed the claims against the officers under the Fourth and Fourteenth Amendments

The municipalities were entitled to summary judgment on the protestors’ claims under Monell v. Department of Social Services, 436 U.S. 658 (1978). Even assuming that any officer effected an unreasonable seizure, a municipality may not be liable under § 1983 “unless action pursuant to official municipal policy of some nature caused a constitutional tort.” Where an official policy is lawful on its face, a plaintiff must establish the existence of an unconstitutional “policy” by showing that the municipality’s failure to adopt adequate safeguards was the product of deliberate indifference to the constitutional rights of its inhabitants. “A showing of simple or even heightened negligence will not suffice.” Dundon v. Kirchmeier, (8th CCA 22-1246, 11/3/2023)

Injunction Denied On Prohibition On Assault Rifles

This is a lengthy but well written decision which is not easy to simplify. Multiple parties brought suit seeking an injunction that would prohibit the state of Illinois from enforcing the Protect Illinois Communities Act that was passed by the Illinois legislature in 2023. The Act primarily restricted the sale, transport, or possession of assault weapons and large capacity magazines. The Act provided exceptions to the prohibitions which permitted trained professionals and it had a grandfather exception for owners. The appeals court consolidated all the cases for review.  

The 7th Circuit Court of Appeals found that in order to show a likelihood of success on the merits, the plaintiffs in each of the cases before the court had the burden of showing that the weapons addressed in the pertinent legislation are Arms that ordinary people would keep at home for purposes of self-defense, not weapons that are exclusively or predominantly useful in military service, or weapons that are not possessed for lawful purposes.

The court found that history and tradition leave no doubt that certain weaponry is for the state only: weapons such as the grenades, the machine guns, and artillery pieces were restricted. The court found the state was not violating the 2nd Amendment when it restricted assault weapons and large capacity magazines which were covered under this Act. The plaintiffs had failed to show they would prevail and the court would not impose an injunction under the facts presented. The Appeals court recognized this was only the beginning stage in this matter and the plaintiffs could later provide information that might change the court’s outlook on this matter. Bevis v. City of Naperville, (7th CCA 23-1353, 11/3/23)

Comment Howard: The United States Supreme Court has taken a case from New York leading many observers to believe that the court will take a fresh look at Second Amendment gun rights. 

Good Neighbor Policy

 Amy Howe reported on December 20,2023 that The United States Supreme Court will hear oral argument in February on whether to freeze a plan created by the Environmental Protection Agency to reduce ozone levels across the United States. Challengers, which include three states and companies affected by the plan, call the plan a “failed experiment” that could strain the nation’s electrical grid. In a relatively rare move, the justices declined to put the plan on hold immediately and instead ordered oral argument on the challengers’ request early next year. We will be watching this case to see if it has an impact on local government https://www.scotusblog.com/2023/12/february-oral-argument-scheduled-for-stay-applications-in-good-neighbor-pollution-rule-challenges/

McGriff v. City of Miami Beach, 11th CCA 22-12863, 10/27/2023