Gaming Machines

Local governments have struggled with gaming machines since shortly before COVID.  While the Missouri legislature has continued to not address the issue the case law on the issue has gradually been building.  The Missouri Attorney General and the St. Louis County Prosecuting Attorney announced they are working together to address the issue in St. Louis County.  The current initiative plans on removing the machines throughout St. Louis County.  It is a quickly evolving issue and other jurisdictions are taking action against the stores permitting the machines. In Greene County Missouri the Attorney General filed two felony charges and the Attorney General is coordinating with the Greene County Prosecutor.  The impetus for this action is a recent federal court decision.  The Attorney General has advised that “Any person or business in possession of an illegal gambling machine that meets the definition of a gambling device under state statute Chapter 572 must have their machines removed or permanently disabled by June 1. Failure to comply will result in prosecution.” News Story; AG Press Release

Torch Electronics Loses Civil Case 

TNT Amusement filed suit against Torch Electronics.  TNT Amusement leases traditional arcade games to retailers throughout Missouri. TNT pursued a claim that Torch Electronics places “no chance” gaming devices in the same market and the devices are illegal slot machines that harm TNT’s ability to obtain and keep customers.

TNT alleged that (1) Torch committed false advertising under the Lanham Act, (2) engaged in unfair competition under Missouri common law, and (3) alleged four violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). TNT sought a declaratory judgment that Torch devices are illegal gambling devices and slot machines under Missouri law.  On a summary judgment motion the RICO claims were dismissed but the claims for false advertising and engaging in unfair competition proceeded to trial.  To find liability the jury had to find that one or more of the following commercial representations by Torch were false or misleading: (1) in the No Chance Game, chance has absolutely no role in any possible outcome; (2) the “Prize Viewer” option on NCGs eliminates chance; (3) every “No Chance” Game is carefully designed to ensure that the element of chance has no role in the outcome; (4) or as a result, this amusement device does not fit any definition of a “gambling device” inthe state of Missouri and is not prohibited for use by you.  The jury found in favor of TNT.

After finding in favor of TNT the jury had to determine the damages.  The jury was advised to consider lost profits and damage to reputation.  The jury awarded $500,000.00 in damages.  After the jury’s findings the court issued a declaratory judgment that the Torch devices met the definition of “gambling devices” under Missouri law. The court then considered whether to award attorney fees and additional remedies.

To determine whether the court would award attorney fees and additional remedies the court looked at the Lanhan Act.  Under the Lanhan Act the plaintiff may recover the (1) defendant’s profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action.  In an exceptional case the court may award reasonable attorney fees to the prevailing party.

The court determined the plaintiffs were entitled to attorney fees as this was an exceptional case.  The court found that Torch had a long history of refusing to comply with Missouri law.  The machines at issue had been declared to be gambling machines in 2019 but Torch evaded compliance by not obtaining a license in Missouri.  The court noted there had been significant litigation and that Torch continued to engage in its unlawful practices.  Additionally, the court found in this matter that Torch’s litigation tactics resulted in subsequent deposition and prolonged the case. 

The court then considered whether disgorgement is appropriate in this matter and the scope of disgorgement.  The court did not issue a final decision on that issue but limited the scope to the profits generated within the territory operated by TNT.  TNT Amusement v. Torch Electronics (USDC ED Missouri, 4:23-CV-330-JAR, 2/13/26)

Waiver of Counsel

Elizabeth Speer (Speer) was convicted of misdemeanor property damage.  She proceeded to trial without an attorney and represented herself during the trial.  Prior to the trial the court did not conduct a Faretta hearing, and it did not obtain a written waiver of counsel. Speer appealed her conviction on the grounds that the court violated her constitutional rights and failed to follow provisions of Missouri law that require a hearing and a written waiver of counsel.

A fundamental principle of appellate law is that a legal claim must be preserved and raised at trial.  Additionally constitutional claims must be raised at the first opportunity to be preserved.State v. Ndon, 583 S.W.3d 145, 153 (Mo. App. W.D. 2019).  One exception to this rule is a self-represented defendant’s failure to raise an objection over their right to legal counsel. When a person facing jail time is unrepresented the court has an obligation to conduct a Faretta hearing and obtain a written waiver of counsel as proved by Section 600.51 RSMo.  Court Rule 30.20 provides a mechanism by which an appellant can seek review of any unpreserved claim of plain error affecting substantial right for manifest injustice or miscarriage of justice.  The court determined that the failure to obtain a written waiver and conduct a Faretta hearing was a manifest injustice.  The court explained that the Sixth Amendment to the United States Constitution guarantees that a person brought to trial must be afforded the right to the assistance of counsel before they can be validly convicted and punished by imprisonment. U.S. Const. amend. VI.; Faretta v. California, 422 U.S. 806, 807 (1974); State v. Sullivan, 640 S.W.3d 149, 154 (Mo. App. E.D. 2022). If a defendant elects to proceed pro se, they have to go into self-representation with their “eyes open.” Faretta, 422 U.S. at 835. For a waiver of counsel to be effective, due process requires that the waiver be made knowingly and intelligently. The court reversed and remanded this matter.  Missouri v. Speer, (ED113172, 2/17/26)

Miranda Warning During DWI Investigation

Missouri State Highway Patrol Troopers Downs and Reynoso observed a vehicle traveling 72 miles per hour in a 60 miles per hour zone.  As a result of their observations the troopers stopped the vehicle.  Officers observed a man, Demarcus Spates, operating the vehicle during their initial observation but when they contacted the occupants in the vehicle a woman was in the driver’s seat and the man was in the front passenger seat.  The officers during the initial contact observed an odor of marijuana.  The officers had the woman in the driver’s seat exit the vehicle and they conducted an interview.  After 18 minutes of investigating, the officers asked the male passenger to exit the vehicle.  The officers learned that Spears had left a club 20-30 minutes before the stop and he had consumed a couple of shots of alcohol at the club.  The officers observed Spears had glossy eyes, strong odor of alcohol, he mumbled and repeated himself.  The officers requested that Spears submit to a field sobriety test.  Spears declined twice to perform field sobriety tests.  Spears was arrested for driving while intoxicated and was subsequently convicted.  Spears appealed his conviction.

On appeal Spears argued statements made to the police officers during the detention should have been suppressed because Spears had not received a Miranda warning.  “A criminal suspect is entitled to Miranda warnings once the suspect is subjected to a custodial interrogation.” The United States Supreme Court previously rejected Spears argument in Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984).  In Berkemer the court held that traffic stops are comparable to Terry stops because they are relatively brief and occur in public.  The Berkemer exception to Miranda warning extends to traffic stops for driving while intoxicated and factors that provide reasonable suspicion permits an officer to ask limited questions to confirm if a person is impaired due to the questioning being brief, limited, and public.

The court found that the detainment was in this matter was short, in public, and the questioning was limited and as result the defendant was not in custody for the purposes of Miranda. Missouri v Spates, (ED113216, 2/17/26)

ADA Claim. 

Donald Stephens (Stephens) worked for the United States Environmental Services (USES) as an “Operator”.  The position required him to maintain a Commercial Driver’s License.  Stephens reported to work for the cleaning of two underground tanks. Stephens arrived at the worksite and after setting up his truck Stephens’s supervisor requested that Stephens start cleaning the tanks.  Stephens declined because he was a truck operator and not a technician and he lacked the appropriate safety equipment.  After the safety workers arrived there were additional requests for Stephens to assist in cleaning out the tank.  Stephens continued to decline due to a lack of safety equipment, and he then provided he was concerned the work could aggravate his heart condition.  The supervisor cleaned the first tank but was too tired to continue and he threatened to fire Stephens if he did not clean the second tank.  Stephens after being pressured agreed to clean the tank.

Shortly after this incident USES requested Stephens be examined by a nurse because of the heart condition. The nurse performed an EKG on Stephens, and she believed that Stephen’s test results for the EKG were abnormal and she placed a medical hold on his CDL for 45 days.  Even though the nurse put a hold on Stephens’s CDL she found that Stephens was medically and physically fit to perform all other work. Stephens then went to his cardiologist who reviewed the results of the test and found that the results were not unusual for Stephens.  The nurse then requested that Stephens perform a stress test before the hold on the CDL would be lifted. Stephens returned to work but was not permitted to work and the USES advised Stephens to seek short-term disability. 

Two weeks after being told to seek short-term disability and after not being permitted to work Stephens completed his stress test and he was cleared for work.  The medical hold for his CDL was lifted after 45 days.  Stephens decided to not return to work and resigned due to the way he was treated by the USES after they denied his request to perform other work during the 45 day hold.

Stephens then brought claims against USES which included allegations that USES violated the Americans with Disabilities Act, Arkansas Civil Rights Act and violated Fair Labor Standards Act.  The district court dismissed the FLSA claim and granted summary judgment on the discrimination claim. Stephens appealed the decision and challenged the findings. On appeal Stephens did not raise a claim that USES “regarded him as disabled” and the court deemed that claim abandoned. Not raising that claim left the court only to consider if Stephens was in fact disabled.

If a person is disabled that person is entitled to protection under the ADA.  To demonstrate a disability a person must show a physical or mental impairment that substantially limits one or more major life activities.  While the parties agreed that Stephens had a heart condition the parties do not agree on whether that condition substantially limits a major life activity. Stephens claimed that his atrial fibrillation substantially limits the major life activities of breathing, respiratory, circulatory, and cardiovascular function.  Atrial fibrillation can cause shortness of breath and loss of consciousness due to inadequate blood flow.  Even though Stephens raised this issue he did not specifically provide evidence showing how he is personally limited by his condition. The record shows Stephens’s atrial fibrillation did not substantially limit his major life activities. Both the nurse and his doctor found that Stephens was physically fit to perform work. Stephens did not show he was disabled under the ADA; summary judgment was appropriate on his disability discrimination claim.

The court then examined whether Stephens could establish a retaliation claim. For an ADA retaliation claim, the plaintiff “must establish that the plaintiff engaged in protected activity, suffered an adverse employment action, and there is a causal connection between the two.” Heisler v. Metro. Council, 339 F.3d 622, 632 (8^th Cir. 2003). In Heisler, this Court held that “requesting an accommodation is protected activity,” and, therefore, “an individual who is adjudged not to be a

‘qualified individual with a disability’ may still pursue a retaliation claim under the ADA, as long as the person had a good faith belief that the requested accommodation was appropriate.” Id.  “A reasonable accommodation is one which enables an individual with a disability to perform the essential functions of the position.” Hatchett v. Philander Smith Coll., 251 F.3d 670, 675 (8th Cir. 2001).

In this matter Stephens refused to clean out the tanks.  He had initially advised his supervisor he believed they needed safety equipment and he was not going to clean the tank without safety equipment.  Stephens only raised his concern about his heart condition after additional requests.  Stephens request for the respirator was not a request to accommodate his medical condition.  Stephens’s doctor did not restrict or warn Stephens about working in a confined space nor did his doctor advise Stephens to wear a respirator.  There were insufficient facts to support Stephens claim that he was engaged in a protected activity.  

The district court did not err in granting USES summary judgment on Stephens’s claims.  Stephens v. USES, (8^th Circuit 24-3409, 2/12/26)

Miranda Warning

Deandrea Walton (Walton) had been repairing cars.  He believed he observed two individuals removing catalytic converters from the cars he had been repairing.  Walton attempted to confront the individuals, but they ran from him.  As Walton pursued the suspects he discharged 24 shots from a semi-automatic handgun.  Walton killed both individuals that fled from him.  Walton did not stay at the scene or report the incident to the police.  Walton fled the scene and threw the gun into the Mississippi river.

When the Saint Louis Metropolitan Police Department (SLMPD) conducted an investigation of the murder they were able to obtain video from a business that captured some of the incident.  Officers were able to observe a person with distinctive shoes that matched shoes owned by Walton. 

AS SLMPD were investigating the matter Walton reached out to a contact he had in the FBI about a different matter and then advised the FBI agent that he had information about a homicide.  Walton and his FBI contact met with SLMPD to discuss the case.  Walton advised the police that another person committed the crime.  The person described by Walton did not match the video, but SLMPD detective recognized the shoes in the video as shoes Walton wore during the interview.  Detectives obtained phone records that established Walton was in the area at the time. 

The detectives decided they would reinterview Walton and arranged a meeting with him.  When the detectives contacted Walton, they observed that he was in possession of a gun which he was keeping in his car.  The detectives knew that Walton was prohibited from possessing a firearm because he is a felon.  The detectives placed Walton under arrest for possession of a firearm, and the detectives read Walton his Miranda rights. Walton was transported to police headquarters.  In the interview room Walton had his belt, shoelaces, and earrings removed.  Walton was advised that the officers had follow up questions about the homicide.  The detectives then read Walton his Miranda rights and the Miranda warning was recorded on video.  Walton advised he understood his rights and continued to speak with the detectives. The detectives confronted Walton about his statements being inconsistent with the evidence and then showed him still photographs from the video surveillance footage.  Walton admitted he was the shooter.

Walton was subsequently convicted of first-degree murder.  Walton appealed the verdict and on appeal argued the trial court erred in admitting statements he made to the police because the admission of the evidence violated Walton’s right to silence, counsel, privilege against self-incrimination, due process, and fair trial.  

“When Miranda warnings are properly given, ‘an accused may knowingly and intelligently waive his rights and agree to answer questions or make a statement.’” State v. Lawson, 693 S.W.3d 82, 101 (Mo. App. E.D. 2023) The waiver inquiry has “two distinct dimensions.” State v. Mendez-Ulloa, 525 S.W.3d 585, 592 (Mo. App. E.D. 2017) “First, the waiver must be voluntary, in the sense that it was the product of free and deliberate choice, not of intimidation, coercion, or deception.” Id. “Second, the waiver must be knowing and intelligent, in that it was made with a full awareness of the nature of the Miranda rights being abandoned and the consequences of the decision to abandon those rights.” Id.

Walton claimed that if the detectives had informed him of the true nature of their investigation, he would not have waived his Miranda rights. The court provided “That the individual is being investigated for a criminal matter should be implied from the issuance of one’s Miranda rights but is of no consequence to the voluntariness of the waiver.” Walton’s waiver of his Miranda rights was voluntary because he was informed of those rights and stated he understood them. The court affirmed the trial court’s decision.  Missouri v. Walton, (ED112976, 2/17/26)