Flash Bang Policy – Should Be Reviewed

• 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.” Law enforcement policy
• 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.  See discussion re policy.

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 Thompson v. Monticello.
• 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.

Eighth Circuit Remands Case To Determine Whether Clerk Of The Court Was Employee Of The State Or The City 

• The City of Helena-West Helena, Arkansas (City), thought that Romona Evans had a warrant for unpaid court fines.  After Evans was arrested, her car was towed, and was held at the police station for unpaid court fines, it was discovered that she had paid the fines.  Evans then filed suit in federal district court against the City, alleging that the Clerk’s failure to document payments was “a practice, custom and habit,” and the City’s“ unconstitutional policies” caused a deprivation of her liberty and property, in violation of the Due Process Clause of the Fourteenth Amendment.
• Plaintiff is trying to tap into the coffers of the city to recover her losses based on an argument that the Municipal Court judge and employees are city employees, not employees of the court, making the City liable under the Civil Rights Act. Evans v. City of Helena-WestHelena,
• Remanded to determine whether or not the employees were employees of the state or the city.  Facts, in this case, are similar to the way some of our municipal courts are operated with the city making the appointment of the judge and collecting the revenues from the defendants. Obviously, the implications of this case for local government in Missouri deserve watching because there are lots of persons who are looking to recover municipal court fines that were paid improperly.
• Things just got a little more dangerous because the City of Helena–West Helena recently disbanded its District Court and reorganized it after a state audit showed major discrepancies with respect to the accounting of funds. Whether or not this relates to the ongoing federal court case is not known, but surely it will have an impact because the city just disbanded the court, fired all employees and is in the process of rehiring some of the former employees in order to reconstitute a municipal court. It sounds to me like the City now owns it and its potential liabilities. For a discussion of the action just taken by the City click here.
• For more extensive review of this case click here.

Statutory Provision Requiring Remittitur for Damages in Excess of Statutory Limit Does Not Apply to Employee

• Brancati, a bicycle rider, was injured by Allen, a bus driver for Bi-State Development Agency (Metro). Brancati sued Metro and the bus driver Allen resulting in a jury award in the amount of $625,000 against Metro and Allen, finding that they were jointly and severally liable.
• Metro and Allen filed a Motion for Remittitur arguing that they were entitled to a reduction of the verdict because the sovereign immunity cap in the state statute limited both of their liability to $414,418. Brancati vs. Bi-State Development Agency, held that the cap on damages in Section 536.610.2 does not apply to public employees. The statutory cap applies only to a “public entity.” 
• For more extensive review of this case click here.

Negligence In Failing To Require Developer To Comply With Building Code Is Protected By Sovereign Immunity

• Plaintiff suffered serious injuries when he fell from an unguarded retaining wall situated on private property, which was not in conformity with the Building Code of the City because it did not include a guard, fence, or barrier.  The Plaintiff claimed that the City’s negligent inspection, or lack of inspection under the City Code, contributed to these injuries.
• In State of Missouri  ex rel City of Lee’s Summit v.  Hon. Kenneth R. Garrett, the Court held that the promulgation of the building code by the municipality was the exercise of police power conferred on it by the legislature for health and safety; therefor, the action was barred by sovereign immunity. For a more extensive review of this case click here.

$24 million Settlement for improper Use of Electric Line Easements for Internet Services

• In 2017 Judge Benton, wrote an opinion for the Eighth Circuit that held Sho-Me Power Electric Cooperative did not have the right to use fiber-optic cables for a public serving telecommunications purpose because it was not authorized by the easements. Click here to see Barfield v. Sho-Me Power Electric Cooperative; Sho-Me Technologies, LLC.
• Sho-Me Power Electric Cooperative, in 2019, settled with landowners a $24 million lawsuit bringing to an end years of litigation involving the illegal use of electric line easements for providing telecommunication services to the public.
• The opinion in this case matters because it provides the reader with a great discussion of easements, a question that frequently comes up in municipal practice. For a more detailed discussion of the case click here.

Howard Wright© 2019