Privacy is Inherent in a Driver’s Statutory Right to Counsel

• In  Rosing v. Director of Revenue, the Missouri Supreme Court, held that the statutory right to attempt to contact an attorney included the right to speak to an attorney privately.
• ” To conclude otherwise, would create absurd results.”
• For full review of this case in the MMAA newsletter click here
• Roesing v. Director of Revenue, did not go into whether or not there was a constitutional right to talk in private with an attorney, raising in my mind, the status of the right of privacy in Missouri.
• Missouri has a very robust interpretation of the right of privacy, but seems like the Roesing is pretty much a stand-alone case interpretation of a statute. Click here for discussion of Missouri law re right of privacy.
• For an excellent thumbnail discussion of the right of privacy under federal law click here.

No Search Warrant Required for Forced Blood Draw

• The United States Supreme Court, held in Mitchell v. Wisconsin, that as a general rule, in civil and criminal cases, when a driver is unconscious, a search warrant is not needed because being unconscious constitutes exigent circumstances.
• This opinion overrules State of Missouri v.  Osborn, that a search warrant was required for a forced blood draw in a criminal case and answers this question in civil cases.
• For more extensive review of Mitchell v. Wisconsin, click here. 

Retaliation Claim Survives Even Though Underlying Age Discrimination Claim Failed

• “A retaliation claim may survive even if the underlying discrimination or harassment claim is unsuccessful.” The statue protects the rights to file; therefore no motive required for violation. “The only issue is whether the person making the complaint has a reasonable good faith belief that there were grounds for the claim of discrimination or harassment.” See White v.  Kansas City Public School District.
• For more extensive review of the Kansas City Public school District case click here.
• Logically, it follows, that a retaliation claim does not require employee to have a good  faith reasonable belief under the MHRA that employer engaged in prohibited conduct. See  Gentry v. Orkin LLC and Danny Birion
• Hypocrisy of  Orkin is rewarded with $120,000 verdict, $10 million in punitive damages, and $488,000 in attorney’s fees.
• For more extensive review of the Orkin case click here. 

Search Warrant Required To Track Suspect Using Cell Phone/Tower Technology

• The United States Supreme Court, held in Carpenter v. United States,  that the Fourth Amendment required a search warrant to obtain historical cell phone records from cell towers.
• The time stamped data provides an intimate window into a person’s life, revealing not only his or her particular movements, but like “familial, political, professional, religious, and sexual associations.”
• For more extensive review of this case click here.

Probable Cause to Arrest Generally Defeats First Amendment Free Speech Retaliation Claim

• In Nieves v. Bartlett, the United States Supreme Court, held that if a police officer has probable cause to make an arrest, that the officer is generally shielded from any retaliation claim in free speech claims, except in those situations where the officer was treating the defendant differently than other persons similarly situated.
• If there is no probable cause, you apply the Mt. Healthy test.  Test: Was the retaliation a substantial or motivating factor behind the arrest, and, if that showing is made, the officer can only prevail only by showing that the arrest would have been initiated without respect to retaliation.
• For more extensive review of this case click here.
• IMLA has a video for training police on Nieves v. Bartlett

Lemon Test, No Longer Has  Juice – Supreme Court Upholds Christian Cross On Public Property Where Public Funds Were Used

• • A 32-foot tall Latin cross displays the American Legion’s emblem at its center and sits on a large pedestal bearing, a bronze plaque that lists the names of all 49 county soldiers who had fallen in WWI.
  • The Maryland-National Capital Park and Planning Commission (Commission) acquired the Cross and the land where it sits, but the American Legion reserved the right to continue using the site for ceremonies.  The Commission has used public funds to maintain the monument ever since.
  • The American Humanist Association (AHA) and others filed suit in District Court, alleging that the Cross’s presence on public land and the Commission’s maintenance of the memorial violated the First Amendment’s Establishment Clause.
  • The United State Supreme Court granted certiorari and held that the  cross did not violate the separation of church clause in the Constitution, by a 7 to 2 majority. The majority utilized a history and tradition analysis, instead of the Lemon test or the test fashioned by Justice Breyer in the Ten-Commandment case.
  • The history and tradition analysis includes at least four considerations, showing that retaining established, religiously expressive monuments, symbols, and practices are quite different from erecting or adopting new ones.  First, these cases often concern monuments, symbols, or practices that were first established long ago,   Second, as time goes by, the purpose associated with  long established monuments, symbols, or practices often multiply. Third, the message of a monument, symbol, or practice may evolve with time. Fourth, time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance.  Therefore, with the  passage of time there is a strong presumption of constitutionality.

Lemon Test, No Longer Has  Juice – Supreme Court Upholds Christian Cross On Public Property Where Public Funds Were Used

• A 32-foot tall Latin cross displays the American Legion’s emblem at its center and sits on a large pedestal bearing, a bronze plaque that lists the names of all 49 county soldiers who had fallen in WWI.
• The Maryland-National Capital Park and Planning Commission (Commission) acquired the Cross and the land where it sits, but the American Legion reserved the right to continue using the site for ceremonies.  The Commission has used public funds to maintain the monument ever since.
• The American Humanist Association (AHA) and others filed suit in District Court, alleging that the Cross’s presence on public land and the Commission’s maintenance of the memorial violated the First Amendment’s Establishment Clause.
• The United State Supreme Court granted certiorari and held in American Legion v. American Humanist Association,  that  the cross did not violate the separation of church clause in the Constitution, by a 7 to 2 majority. The majority utilized a “history and tradition” analysis, instead of the Lemon test or the test fashioned by Justice Breyer in the Ten-Commandment case.
• The history and tradition analysis includes at least four considerations, showing that retaining established, religiously expressive monuments, symbols, and practices are quite different from erecting or adopting new ones.  First, these cases often concern monuments, symbols, or practices that were first established long ago,   Second, as time goes by, the purpose associated with  long established monuments, symbols, or practices often multiply. Third, the message of a monument, symbol, or practice may evolve with time. Fourth, time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance.  Therefore, with the  passage of time there is a strong presumption of constitutionality.
• For more extensive review of this case click here.

Sheriff Is Entitled to Qualified Immunity For Dismissing Deputy Officer Who Ran Against The Sheriff As A Candidate

• Employee of the Sheriff’s Department who ran against the sheriff can be dismissed without violating employee’s First Amendment Free Speech rights.Morgan v. Robinson,
• Opinion by Judge Benton, was a masterpiece, succinctly summarizing the law in this area. Nevertheless, I would be very careful since this involved First Amendment rights.
• For a more extensive review of this case click here.

No Cause Of Action For Being Placed On A City Hall “Watch List” Requiring Enhanced Security

•  Actions of the City in “identifying persons who may pose a security risk, and subjecting those persons to heightened screening and surveillance, are part of the security function at City Hall, “a governmental function. State of Missouri, ex rel.  City of Kansas, Missouri, v. Harrell. 
• For a comprehensive review of this case click here

Howard Wright© 2019