Fight Over Probation Fees Not Ready for Ruling

After considering the matter for nearly a year, a split Missouri Supreme Court said a man’s claim that he is exempt from the cost of his supervised probation needs more time to develop. 

On Oct. 5, the court ruled 4-3 that it is “purely speculative and hypothetical” whether parole officials will require Randall Graves to pay a $30 monthly “intervention fee” out of his federal supplemental security income, or SSI.

The ruling delays but doesn’t deny Graves’ underlying contention that requiring such payments from individuals on SSI is forbidden by federal law. Matthew Mueller of MGM Law in St. Louis, an attorney for Graves, said a ruling in his client’s favor could have affected numerous people across the state who face the possibility of prison for failing to make payments out of meager income that should be protected.

“Do we really have to wait for poor Mr. Graves to be revoked and sent to the Department of Corrections before he can actually raise this as a viable claim?” he said. “That doesn’t make much sense.”

Graves is serving a five-year term of probation after pleading guilty in 2018 to receiving stolen property. Two months into his probation, he received a letter from the Missouri Department of Corrections’ probation and parole division informing him that he was required to pay a monthly intervention fee of $30 for the duration of his supervision. The letter said he had an overdue balance of $60 and that he could face collection efforts and the revocation of his probation if he didn’t make timely payments. 

Graves filed a declaratory judgment action, alleging that his only income is $771 a month in SSI and that forcing him to pay the intervention fee would violate a federal anti-attachment provision that bars SSI from being subject to garnishment or “other legal process.”

Writing for the majority, Judge W. Brent Powell said Graves’ claim isn’t ripe because the probation division hasn’t taken any definitive steps to force Graves to pay the fee or to revoke his probation for lack of payment. Powell went so far as to check the status on of Graves’ underlying criminal proceedings in Platte County Circuit Court, which shows no violation reports since he was placed on probation in early 2019.

“Graves’ case could be ripe if the Division made a concrete, binding, immediate decision to classify him with violation status should his nonpayment continue or the Division took other definitive action to collect the fee,” Powell wrote. “But the Division has made no effort to collect the fee other than sending the letter to Graves, and the letter itself was non-binding. It had no legal effect on Graves’ rights.”

The majority dismissed the case but specified that Graves could refile it if his situation changes.

In a dissent, Judge Patricia Breckenridge, joined by Judges Mary R. Russell and George W. Draper III, argued that Graves’ claim should be allowed to proceed. Breckenridge wrote that “the controversy relates to what the division has already done in imposing monthly intervention fees as a condition of Mr. Graves’ probation, not what it may do in the future.”

“No further factual development is necessary for a court to make an accurate determination of the facts and resolve, with specific relief of a conclusive nature, whether the imposition of intervention fees as a condition of Mr. Graves’ supervised probation violates” the federal anti-attachment law. “Mr. Graves is not required to subject himself to the risk of sanctions, as the principal opinion holds, before he can maintain an action for declaratory judgment.”

The ruling came out almost a year to the day after it was argued on Oct. 6, 2020. Since then, the court has seen a change in personnel: Judge Laura Denvir Stith retired in March after taking part in last year’s argument, and Gov. Mike Parson appointed Judge Robin Ransom in May to succeed her. 

According to court records, Stith was briefly named to the case as a senior judge, but that order was almost immediately rescinded. Instead, the court said in July that it was considering the case on the basis of the submitted briefs, a procedural move that allowed Ransom to vote on the case. She sided with the majority. 

Mueller said he believed the case would have come out differently if Stith were still on the court — particularly as the Supreme Court’s ruling mirrors a 2020 decision in the Court of Appeals Western District. Had the then-majority of the Supreme Court agreed with the result in that case, Mueller reasoned, there would have been no reason to accept his case on transfer.

In the meantime, Mueller urged public defenders to watch for opportunities to make a similar argument on behalf of clients whose fees already are coming from their SSI.

“They’re not shooting down my claim,” he said. “They’re basically saying we’re going to wait for a better case, someone who is actually at risk of being revoked for not paying.”

The attorney general’s office didn’t respond to a request for comment.

The case is Graves v. Missouri Department of Corrections, SC98501. 


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Kansas City Plan to Reallocate Police Funds Violated State Law, Judge Rules

The police board filed a lawsuit after the mayor sought to reduce its budget by 18 percent. Unsplash photo by Tingey Injury Law Firm.


Story By Glenn E. Rice The Kansas City Star |

A Jackson County judge ruled on Tuesday that the Kansas City City Council overstepped and violated state law with its plan to reallocate millions in funding for the city police department.

The police board filed a lawsuit in May in Jackson County Circuit Court after the city council approved a measure cutting the police budget back to 20% of the city’s general fund, the minimum required by state law.

The lawsuit was in response to the City Council’s approval of two ordinances orchestrated by Mayor Quinton Lucas that sought to reduce the Kansas City Police Department’s budget by $42.3 million. It placed that money, about 18% of KCPD’s $239 million budget, in a separate fund and its use would be the matter for City Manager Brian Platt and police commissioners to negotiate.

Under the measure the city would reallocate the money to a newly formed “Community Services and Prevention Fund.”

Lucas, in a statement after the ruling, said the city would weigh its options going forward, including the possibility of an appeal.

“The decision announced by the Court today has provided a pathway forward for the City to require the Kansas City Police Department to engage in discussions related to crime prevention throughout future budget cycles, should the Department seek to receive funds in excess of 20 percent of the City’s General Fund Revenue,” Lucas said in the statement.

“I will continue working with the City and Department leadership to ensure every taxpayer funded entity in our City shares a role in working to prevent violent crime and create better outcomes for all people in all of our neighborhoods.”

In July, Missouri Attorney General Eric Schmitt filed a brief opposing the council’s measure, which would have effectively given the city more control over the police department’s budget.

Schmitt said in a statement after the ruling on Tuesday: “This is a huge win for the people of Kansas City and law enforcement officers who work every single day to keep their communities safe. I will always stand up for Missouri’s law enforcement and fight back against craven attempts to defund the police.”

In his ruling, Judge Patrick Campbell wrote that the judgment is not a determination of the values of “defunding the police.”

“This judgment does not resolve whether citizens of Kansas City should exert direct political control over their law enforcement agency,” he wrote. “It is not a referendum on the Chief of Police, the Mayor, or any other appointed or elected official.

“These are subjects of vigorous social debate and should be finally resolved by a healthy democracy. However, they are not legal issues pending before this Court.”

During a previous hearing in the case, Kristine Reiter, KCPD’s budget manager, said if the ordinances went into effect as approved by the city council and KCPD continued to spend funds, the board would run out of money by December.

The police department, she said, would be forced to lay off 1,000 sworn officers and staff to ensure there was enough money until the end of the year. It would force reductions in patrol divisions located in the city’s urban core, she said.

Lucas disputed the department’s claims, saying they are “totally incorrect.” He said the city recently sought to increase police funding to pay for an academy class and raises for officers.

Tara Kelly, an attorney for the city, said the city council acted within the bounds of its constitutional and statutory authority in withdrawing a portion of the money it allocates annually to the police department.

Just recently, the police board purchased body cameras for officers and paid for a new academy class.

Police board lawyer Patrick McInerney has previously said that the city’s police spending could be changed during budget discussions in March, but not later. “When that board approves that budget, the door slams and nobody else can reach in, grab money, adjust money, or do whatever they want,” he said during the court hearing.

Any spending above the state-required 20% threshold is fully “discretionary” for the city council, lawyers said during the hearing.

Council members who supported the budget measure said the city has no say in how tax dollars are spent.

Critics of the plan, including four members of the Kansas City City Council who represent Northland districts, have tried to portray the measure as “defunding the police” despite the ordinances calling for Platt to negotiate with KCPD and no other city department.

Local civil rights leaders tried to intervene in the lawsuit.

Urban League of Greater Kansas City president Gwen Grant alleged in a court filing that the current policing structure is a “Taxation Without Representation” scheme that violates a citizens’ initiative that limits state revenues and local taxes.

The ordinances earmarked an additional $3 million in police funding for use in hiring a new class of recruits from the police academy, something that Police Chief Rick Smith had said he has not been able to do since February 2020.

The police commissioners contended that the ordinances provided no means to return money to the police department if an agreement was not reached, leading them to seek to prevent the city council from reallocating the money.

Kansas City leaders, however, called claims in the lawsuit legally and factually false. City leaders argued that the city council acted within bounds of its constitutional and statutory authority.

The police commissioners have oversight on KCPD operations while the City Council sets the police department’s annual budget.

With an exception for a brief period, the police department has been under state control, a product of the Civil War, the Confederacy and white supremacy, historians say.

Lucas has said the city had a legal argument under the Equal Protection Clause under the 14th Amendment of the Constitution, which says people have to be treated the same under the law.

The city also maintained it followed the appropriation process to fund the police department and that Missouri provides it the authority to revisit any money that exceeds the state funding requirement of 20% of the city’s general revenue.

(The Kansas City Star’s Robert Cronkleton and Luke Nozicka contributed to this report.)


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Once Again, ‘Talk Nice’ Carries Legal Weight

United States v. Gastelum, 2021 WL 3888144 (8th Cir. 2021)

A trooper stopped Aldo Gastelum for an unsafe lane change on a busy freeway. The trooper approached the passenger side, told Gastelum of the reason for the stop and asked for his license and insurance information. After Gastelum explained the vehicle was rented, he handed over the rental information. When the trooper asked Gastelum about his travel plans, Gastelum said he had rented the car in Houston and was on his way to Chicago. Gastelum told the trooper he was a veteran and was visiting Army Reserve facilities looking for employment in the Reserves. Gastelum said he was a disabled college student in California and that he was planning to fly back to California from Chicago.

The trooper returned to his patrol car to check Gastelum’s license and to review the rental agreement. He wrote a warning citation for the lane change. He noticed the rental contract was a one-way, single-day rental agreement for $734.39. The trooper thought Gastelum’s travel plans were peculiar.

When the trooper returned to the side of the rental car, he asked Gastelum whether he had any luggage in the trunk. Gastelum said he did. The trooper replied, “Quick check of that and then we’ll be done. Alright, come on out for me and pop that trunk on your way out.” Gastelum had some trouble opening the rental car’s trunk. The trooper joked that trunk releases “are kind of hard to find.” Before Gastelum opened the trunk, but while he was looking for the trunk release, the trooper asked: “You don’t mind if I look back there, do you? You don’t care, huh? That’s fine?” The trooper testified he was repeating what Gastelum was saying. Once Gastelum opened the trunk and got out of the car, the trooper saw a duffle bag in the trunk. The trooper opened it and found 15 kilograms of cocaine. He ordered Gastelum to the ground and handcuffed him.

Gastelum asked the court to suppress the evidence from the warrantless search of the car. He claimed the trooper improperly extended the traffic stop. The trial court denied the motion and Gastelum appealed.

A traffic stop may not be extended beyond “the time needed to handle the matter for which the stop was made” unless the officer develops a reasonable, articulable suspicion of criminal activity (Rodriguez v. United States, 575 U.S. 348 (2015)). Reasonable suspicion analysis is based on the totality of the circumstances. The appellate court held the trooper had reasonable suspicion to extend the stop.

The trooper had “over 25 years of experience, has attended numerous drug-interdiction trainings each year since 2008 and has participated in as many as 100 traffic stops resulting in criminal seizures.” He recognized the car rental period was far too short to visit Reserve centers between Houston and Chicago, a drive of 12 to 15 hours. The trooper also noted the cost of the car rental far exceeded the cost of flying. Many courts have acknowledged that drug traffickers often avoid commercial passenger flights and stick to driving.

Gastelum’s explanation that, as a disabled college student, he would spend the time and expense to travel from California to Houston and then Chicago to visit Reserve units, rather than just visit Reserve units in California, also didn’t add up. Moreover, the trooper knew that one does not show up at a military unit seeking a position. In fact, most folks know that’s just not how military recruitment works. The trooper also testified that Gastelum deflected several questions by referring to his military service and aspirations. The court observed that “Gastelum’s deflection of the trooper‘s questioning with a non-responsive discussion about his military experience” is a permissible consideration in the reasonable suspicion analysis, just as any other evasive answer would be.

Gastelum also claimed the trooper gave an unlawful command to open his trunk when he requested to check the luggage in the trunk and then said, “Come on out…and pop that trunk on your way out.” Though the court noted the command format of the initial direction was “problematic,” the court considered the entire conversation in context. The court credited the “friendly atmosphere, rapport, and conversation” as evidence the consent to open and search the trunk was voluntary. In other words, the court found the trooper “talked nice” in asking for consent. Talk nice, think mean.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

Judges Consider Whether Zoom Testimony is ‘Face-to-Face’ Confrontation


The Missouri Supreme Court heard a case on Sept. 15 that could determine if a witness’ Zoom testimony violated the defendant’s rights to face-to-face confrontation and cross-examination. 

Fourteen law professors submitted an amicus brief out of concern for what this case means for state and federal courts.

Eight of those professors work at Saint Louis University School of Law, including Professor of Law Chad Flanders, who wrote the brief in support of Rodney A. Smith’s case.

“In any event, the best reading of the relevant constitutional provisions (both state and federal) is that face-to-face confrontation is the default, and virtual confrontation the carefully limited exception,” Flanders wrote. “If courts permit video testimony in some contexts, even in criminal contexts, there is good reason (given the uncertainty of the technology) to put limits on when remote testimony can be used, and how it should be used.”

Two professors from Washington University in St. Louis also were included in the brief. But the case’s interest reached beyond Missouri. Law schools from Notre Dame University, University of South Carolina and George Washington University each had a professor listed as an amici.

The professors recommended that the court at the very least should provide guidance that an in-person cross-examination should occur before a remote testimony takes place.

Smith was charged with having sex with his girlfriend’s 16-year-old daughter, who was 15 years old when the abuse began. For a 2019 trial, prosecutors sought to include testimony of the lab technicians who had processed DNA testing from the 16-year-old’s sexual assault examination.

Because the subpoena for the technician Eric Hall initially was sent to the police department while he was on paternity leave, and it was against the department’s policy to let him testify while on leave, the prosecutors initially reported to the St. Louis Circuit Court that Hall was unavailable. Hall later volunteered to testify via Zoom.

St. Louis Circuit Judge Clinton R. Wright later allowed Hall to testify via a live two-way Zoom video call shown on a television in the courtroom, though Smith objected. According to an earlier ruling in the Court of Appeals Eastern District, Hall’s testimony was the only testimony at trial that linked Smith’s swabs to DNA found in the sexual assault examination.

Smith’s motion for a new trial was denied, and Smith appealed on grounds that the court denied his right to confront witnesses face to face with the defendant and the jury, and he also was not able to cross-examine Hall in person prior to his testimony.

After finding Smith guilty on two counts of statutory rape, the Missouri Court of Appeals Eastern District transferred the case to the Missouri Supreme Court on April 27 to present the Zoom conference issue at the state level.

Before the Missouri Supreme Court, public defender Nina McDonnell said that the size of the TV used in the Zoom conference was not included in the findings of fact, and that this is another concern because courtrooms have varying sizes available.

“We don’t know how big the screens are. If you go to the different circuits throughout Missouri, St. Louis County might be wildly different from what may be found in St. Francois County,” McDonnell said.

She said that important elements of confrontation like physical appearance were missing because of the choice of a Zoom call. McDonnell also said that the Missouri Supreme Court previously has held that common law exceptions were the only reason that a witness could not testify in court in front of the accused.

Chief Justice Paul C. Wilson did not seem to agree.

“Unless the 19th Century version of Zoom was available, I can’t imagine that you can fairly attribute to that ruling that we were saying that wasn’t presence for purposes of confrontation,” Wilson said. “Either we’re writing on a blank slate or we’re not.”

McDonnell also referenced the last year and a half where court proceedings were fully remote.

“It seems obvious that we wanted to get back in court because something is lost,” she said. “Otherwise why have these grand buildings? Why have the splendor and the solemnity of the proceeding happen in court? I mean if it’s simply that it’s inconvenient for somebody to be in court, then we will be having trials over Zoom.”

Attorney Kristen Johnson from the Missouri Attorney General’s office represented the state and was not available for comment. Because Hall could see Smith and vice versa, she argued that his rights were not disturbed.

Since the issue was not brought up before the initial trial, the trial judge did not have a hearing to determine necessity, availability or whether the technology was adequate. So an off-the-record conversation occurred where the court considered what remedies would be possible to continue the trial.

“That’s why this wasn’t done on the record, because the state believed they had remedied the situation without having to seek continuance or delay the trial, which is material here because the defendant had invoked his right to a speedy trial and was very insistent on it,” Johnson said.

Johnson added that there were several on-the-record discussions between the trial court and the discussions about the workaround to permit the trial to continue. 

The case is State v. Smith, SC99086. 

Case Remanded: Handcuff Injury Ruled Excessive Force?

Will the alleged handcuff injury be ruled excessive force? The court of appeals remanded the case to the trial court to find out.

By Ken Wallentine Police1

HUGHEY V. EASLICK, 2021 WL 2641884 (6th Cir. 2021)

Dawn Hughey was speeding because she was late for work, when she sped past an officer who turned on his emergency lights and dashcam and stopped her. Hughey’s car was uninsured and unregistered, and there was an outstanding failure-to-appear arrest warrant for Hughey. The officer gave Hughey the option of paying the $400 cash bail on her warrant or being taken to the courthouse.

Hughey didn’t have the cash; the officer arrested her. He handcuffed Hughey’s hands behind her back and placed her in his car. When Hughey started to talk about suicide, the officer took her to a hospital. Hughey claimed the officer twisted her arm behind her back as he handcuffed her. She also alleged that he did not check the fitment on the handcuffs and that her shoulder hurt, which she claims she told the officer several times during the ride. The officer didn’t recall at which point Hughey complained, but he did note that he “double-checked the tension of the handcuffs.” The handcuffing was out of the range of the dashcam. Hughey also claimed a nurse at the hospital commented on the red marks around her wrists.

Hughey sued the officer, alleging excessive force and deliberate indifference to her claimed injuries. The district court applied qualified immunity and granted summary judgment for the officer. The 6th Circuit reversed. The appellate court had previously held that “allegations of bruising and wrist marks [from handcuffs] create a genuine issue of material fact” that bar the granting of qualified immunity (McGrew v. Duncan, 937 F.3d 664 (6th Cir. 2019)).

The court of appeals, in this case, held that Hughey created a genuine dispute of material fact about whether the officer violated her clearly established constitutional right to be free from excessive force. “Because lingering ring marks are of the same ilk as bruising, swelling, and numbness – each indicative of an overly tight cuff that grates on one’s skin and causes pain – Hughey’s allegations that the handcuffs caused her pain and marked her wrists get her over the genuine-dispute-of-material-fact line.”

The appellate court remanded the case back to the trial court. The threshold for alleging excessive force based on tight handcuffs is very low. When applying handcuffs, follow a consistent routine of double-locking, checking fitment using the index finger/thumb pinch test, and document both steps – every time. When a handcuffed suspect complains, check the handcuffs again, and document it again. That may make the difference in prevailing against a claim of handcuff injury.


Missouri Would Get $500M Under Opioid Settlement

By Associated Press for Missouri Lawyers Media |


The attorney general on Thursday, July 22 said Missouri could get as much as $500 million to help victims of the opioid epidemic as part of a tentative settlement with the three biggest U.S. drug distribution companies and the drug maker Johnson & Johnson.

Republican Attorney General Eric Schmitt said it would be the biggest “victim-centric” settlement ever in Missouri.

“While this proposed settlement won’t bring back any of these victims, today’s announcement brings the very real possibility of just over half a billion dollars that will go directly toward funding crucial addiction treatment, recovery, and intervention programs,” Schmitt said in a statement.

Lawyers for state and local governments in the U.S. on Tuesday announced they were close to reaching a $26 billion settlement after suing to force the pharmaceutical industry to help pay to fix a nationwide opioid addiction and overdose crisis.

Under the deal, Johnson & Johnson would not produce any opioids for at least a decade. And AmerisourceBergen, Cardinal Health and McKesson share prescribing information under a new system intended to stop the avalanches of pills that arrived in some regions about a decade ago.

Schmitt said Missouri counties need to sign on to the agreement for the state to get its full share.

Asking, ‘Anything illegal in the car?’ Leads to Admissible Evidence

By Ken Wallentine |

The court explains the duration of a traffic stop depends on the mission of the stop, making the officer’s actions in this case reasonable.

UNITED STATES V. BUZZARD, 2021 WL 2387934 (4th Cir. 2021)

An officer pulled Jason Buzzard over at 0130 for a defective brake light. The officer called out the stop and approached the car. He recognized Paul Martin, the front seat passenger, from previous encounters, identifying Martin as a drug user who had just been released from prison. The officer knew that he was conducting the traffic stop in a high crime area, only a block away from a house known for drug sales.

At some point during the stop, the officer asked whether there was anything illegal in the car. In response, Martin pulled out a hypodermic needle and syringe and Buzzard produced a marijuana bowl from under his shirt. The officer waited to walk back to his car and complete computer checks until other officers arrived because he feared that Martin, who was fidgety and nervous, might flee.

Backup officers arrived and searched the car, finding two handguns wrapped in socks. One was under the driver seat (where Buzzard had been sitting) and the other was found under the passenger (Martin’s) seat. Buzzard and Martin were each charged with being a felon in possession of a firearm.

Buzzard and Martin asked the court to suppress the evidence. They argued the officer’s question about anything illegal in the car improperly exceeded the scope of the traffic stop and extended the duration of the stop. A stop for a traffic violation may take the time necessary to determine “whether to issue a traffic ticket,” including time for “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance” (Rodriguez v. United States, 575 U.S. 348 (2015)).

In Rodriguez v. United States, the Supreme Court held that “the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’ – to address the traffic violation that warranted the stop and attend to related safety concerns.” The officer’s traffic mission includes asking about weapons, other questions directly relating to officer safety and inquiring about arrest warrants.

The appellate court held that “given the totality of the circumstances, it makes sense that [the officer] needed to know more about what Buzzard and Martin had in the car.” Asking whether there was anything illegal in the vehicle was directly related to the mission of the traffic stop. The court also noted the officer’s question did not extend the traffic stop – “not even by a second.” Thus, the evidence was properly admitted.

This article was featured in Lexipol’s Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!

Supreme Court Rejects Blanket Warrant Exception to Enter Home to Arrest a Misdemeanor Suspect

Sanctity of the home unites conservative and liberal justices – again. The takeaway for officers is to articulate circumstances that establish an exigency necessitating warrantless entry into a home when pursuing a misdemeanor suspect, beyond just the suspect’s “flight.” (Getty Images)


By Val Van Brocklin for

I previously wrote about the Supreme Court’s unanimous refusal in Caniglia v. Strom(5/17/21), to add a “community caretaking” exception to the requirement that police obtain a warrant before entering a person’s home. The Court united again on June 23, 2021, in Lange v. California, to deny the government’s request to adopt a categorical exception for warrantless entry into a home to arrest a “fleeing” misdemeanant.


Arthur Lange drove by an officer while playing loud music and honking his horn. The officer followed Lange and activated his lights as Lange approached his driveway and drove into his garage. The officer walked to the garage, stopped the door closing with his foot and contacted Lange inside. Lange said he hadn’t seen the officer’s lights. The officer observed signs of intoxication. Lange was arrested for DUI and blew a .245. He was charged with a misdemeanor DUI and noise infraction.

Lange moved to suppress the evidence of the DUI on the grounds the officer’s warrantless entry violated the Fourth Amendment. The prosecution successfully argued that the entry was lawful because it was based on probable cause Lange had committed the misdemeanor of willfully failing to comply with a lawful direction of a peace officer.


The Supreme Court has established that “pursuit of a fleeing felon” meets the “exigent circumstances” exception to the warrant requirement. The Court accepted this case because it had not resolved a split amongst state and lower federal courts as to whether a fleeing misdemeanant categorically created exigent circumstances. 


Justice Kagan wrote the majority opinion, which was joined by five of the Justices. The majority noted that while courts generally decide “exigent circumstances” on a case-by-case basis, there were some already recognized emergencies justifying warrantless entry into a home. They include:

  • To render emergency assistance to an injured occupant;
  • To protect an occupant from imminent injury;
  • To ensure the officer’s safety;
  • To prevent the imminent destruction of evidence;
  • To prevent a suspect’s escape.

In deciding not to add a categorical exception for all “fleeing” misdemeanants, the Court concluded such a broad exception ran contrary to the Founders’ intentions and long-standing precedent:

“Freedom’ in one’s own ‘dwelling is the archetype of the privacy protection secured by the Fourth Amendment’; conversely, physical entry of the home is the chief evil against which [it] is directed.”

The Court added that any warrant exception permitting entry to the home must be “jealously and carefully drawn.”

Two key factors informed the majority’s decision not to adopt a blanket warrant exception for misdemeanors.

  1. They vary widely but can be “minor,” tend to be less violent and dangerous than felonies, and include offenses difficult to consider alarming, e.g., littering on a public beach.
  2. When a minor offense alone is involved, officers do not usually face the kind of emergency that can justify a warrantless home entry.

Per the majority, a misdemeanant’s “flight” from the police might change the calculus but not enough to create a categorical exception by itself that replaces a case-by-case analysis. When responding to a misdemeanor, officers will have to present a “totality of circumstances” that create an emergency, which might include:

  • Flight;
  • The seriousness of the misdemeanor;
  • Imminent harm to others;
  • A threat to the officer;
  • Risk of destruction of evidence;
  • Escape from the home.

While the vote to remand the case for a factual determination of whether exigent circumstances had existed was unanimous, there was contention in a concurrence written by Chief Justice Roberts – so much so that it reads like a dissent. Roberts wrote that “flight” from the police, even if the offense is a misdemeanor, should constitute a categorical exigent circumstance justifying warrantless entry. He contended the majority holding left officers with an indeterminate rule that would be difficult to apply.


In a brief concurrence, Justice Kavanaugh found little practical difference in the majority’s and Roberts’ opinions, stating,

“[T]he difference between The Chief Justice’s approach and the Court’s approach will be academic in most cases. That is because cases of fleeing misdemeanants will almost always also involve a recognized exigent circumstance—such as a risk of escape, destruction of evidence, or harm to others—that will still justify warrantless entry into a home.”

I agree. Moreover, Justice Roberts never explained how requiring officers to have a “totality of circumstances” creating an exigency when the crime is a misdemeanor is any more complicated for officers than requiring they meet that same standard when the suspect isn’t fleeing. 

Lange may yet up end with his conviction affirmed if the lower court finds the facts of his case presented exigent circumstances.

The takeaway for officers is to articulate circumstances that establish an exigency necessitating warrantless entry into a home when pursuing a misdemeanor suspect, beyond just the suspect’s “flight.” In Lange’s case, it wasn’t even clear he saw the officer’s lights.

I recommend you articulate a “totality of the circumstances” that create an exigency justifying warrantless entry into a home even if the suspect is a felon. If police rely on the “fleeing felon” exception to enter homes without a warrant when the felony presents no immediate danger, or the destruction of evidence or an escape, for example, many white-collar crimes, we could end up losing that exception. We got the “exclusionary rule” in 1961 (Mapp v. Ohio) because the Supreme Court decided the only way to deter cops from violating people’s constitutional rights to obtain evidence was to exclude such evidence from use in a prosecution. Let’s not give the Court a reason to take away the fleeing felon exception by abusing it.

Thank you for your service and protection.

Conduct Not Speech: Appeals Court Rules Against March Attendee Ordered Off St. Louis Street

Story by Jessica Shumaker for Missouri Lawyers Media |

Thousands of people participate in a Women’s March Saturday, Jan. 21, 2017, in St. Louis. The march was held in in conjunction with with similar events taking place in Washington and around the nation following the inauguration of President Donald Trump. (AP Photo/Jeff Roberson)

A federal appeals court has reversed a lower-court ruling that a St. Louis ordinance against obstructing traffic is unconstitutional after holding that its primary aim is to regulate conduct, not speech. 

On July 6, a three-judge panel of the 8th U.S. Circuit Court of Appeals reversed a lower-court ruling partially in favor of Jessica Langford, who was arrested while taking part in the Women’s March in St. Louis in January 2017. 

According to the opinion, written by Judge Steven Colloton, Langford marched to a rallying point and observed the event, then joined a crowd returning the same way they had come by walking in the street. 

When police officers told the marchers to move to the sidewalk, Langford refused. She was arrested under a city ordinance that prohibits obstructing traffic.

The charge was dismissed and Langford sued the City of St. Louis in the U.S. District Court for the Eastern District of Missouri in 2018, challenging the constitutionality of the ordinance. 

U.S. District Judge Henry E. Autrey granted her motion for partial summary judgment, concluding the ordinance is an unconstitutional restriction on speech, is void for vagueness and was unconstitutionally applied to Langford. 

Autrey permanently enjoined the city from enforcing the prohibition on obstructing traffic and the requirement to obey a dispersal order. He delayed the jury trial on Langford’s claim for damages pending the disposition of the appeal. 

The 8th Circuit panel disagreed with Autrey. 

Colloton said the ordinance’s primary aim is to address conduct, not speech. Additionally, he said that Langford failed to show the ordinance is an overly-broad restriction on speech. 

“The text of the ordinance says nothing about speech,” Colloton said. “The ordinance furthers the City’s legitimate interest in ‘ensuring the free and orderly flow of traffic on streets and sidewalks.’” 

While Langford conceded that the ordinance on its face regulates conduct, she also argued the ordinance places an incidental burden on speech that is greater than necessary to satisfy the city’s substantial interest in regulating traffic. 

Colloton said that ordinary traffic regulations do not need to exempt people who wish to engage in expressive activity on public thoroughfares. 

“The St. Louis ordinance does not forbid all expressive activities on streets and sidewalks,” he said. “It merely forbids a person to position herself in a way that obstructs the reasonable flow of traffic. Langford has not established that the ordinance unduly restricts free speech in light of the City’s legitimate interest in regulating traffic.”

Additionally the court denied that the ordinance is void for vagueness and that it is unconstitutional as applied to the facts of Langford’s case. The court remanded the case with directions to enter a judgment for the city. 

Colloton was joined by Judges Roger Wollman and Bobby Shepherd. 

Langford was represented by the ACLU of Missouri. Legal Director Tony Rothert said in an email that he and his client “are disappointed the Eighth Circuit sidestepped the important issues regarding local police efforts to crack down on First Amendment rights when they find the messages of protestors challenging.” 

A spokesman for the city did not respond to a message seeking comment. 

The case is Langford v. City of St. Louis, 20-1488. 

Domestic Violence Victims Will Be Allowed to Ask for Lifetime Protection Order

Representative Lane Roberts, R-Joplin


Story by By Alisa Nelson for MissouriNet

Missouri will allow domestic violence victims to ask for a lifetime order of protection against their abuser. Gov. Mike Parson has signed a bill into law today that means if a judge grants the victims a lifetime order, the victims will not have to repeatedly face their abuser in court.

Representative Lane Roberts, R-Joplin, successfully attached the language to Senate Bill 71.

Roberts is a former state Department of Public Safety director and also served as the Joplin Police chief in southwest Missouri.

“In most cases, a one-year order of protection seems to resolve trouble but there are those who are abusers who just cannot or will not take no for an answer. They are truly dangerous both the victims and the victims’ families,” says Roberts. “These are people who live in an entirely different spectrum of abuser and for a victim to have to return to court every year and invest their own money and live in constant fear in order to give themselves the limited protection that we are able to offer them is simply wrong. It just creates a visceral reaction to the unfairness of it all.”

“When you have to look someone in the eye who has been on the receiving end of this kind of abuse, it changes everything. I’m here to tell you that the women who testified in this, these are true heroes,” he says. “I frankly don’t know that I have the strength of character to do what they’ve done – to have the courage to do what they’ve done and then to go on crusading to fix it for victims yet to come.”

Roberts says one of the victims who testified at a committee hearing said she went to court 70 times over a ten-year period and spent about $42,000 of her own money to protect herself and her children.

If granted, that protection order would remain in place until the abuser can demonstrate that they have been rehabilitated. “By any standard, that is just wrong on every level and is patently offensive that the victim should have to be subjected to that kind of burden in order to protect themselves,” he says.

“I’ll be quite candid with you, if I never do anything else during the remainder of my time in the Legislature, having passed this bill was meaningful and it’s the kind of thing that long after people have forgotten my name or whoever is involved in it, will still be able to go on helping victims of this kind abuse have some relative sense of safety,” says Roberts.

Roberts says a protection order is not a magic shield.

“It’s a piece of paper,” he says. “Those people who intend to violate the order, it wouldn’t matter whether it’s temporary, permanent, lifetime, the fact is it can be violated. But when someone violates it, there are different consequences than there would be like to an ex parte or to an abuse that predates an order. It isn’t necessarily an answer to everything, but it is a level of protection that gives the victim some protection.”

If an abuser violates an order, he says the victim does not have to start from scratch explaining the situation to an officer who shows up to respond. The officer can then act.

Missouri law prohibits courts from charging adult abuse and stalking victims an advance filing fee or bond when they file petitions for protection.

Colleen Coble is the CEO of the Missouri Coalition Against Domestic and Sexual Violence. She says the bill is going to bring the state’s order of protection law more in line with the experiences and needs of survivors of domestic violence, stalking and sexual assault.

“For years we’ve known that those in really extreme danger who are subject to ongoing abuse really need an order of protection to last longer than a year. The provisions of Senate Bill 71 will allow judges to do that – to hold hearings and identify those in really dangerous situations and be able to extend the orders so victims are not subjected to risk every time they have to keep going back to court to get their orders renewed,” says Coble.

In Missouri, organizations are serving about 30,000 victims each year through residential and non-residential programs. She says there are more than 26,000 other victims requesting services but going without help.

Under the bill, sponsored by Senator Elaine Gannon, R-De Soto, pets could also be added to an order of protection.

“It is a tactic of abusers to harm or threaten pets to prevent their victims from leaving. We know that pets are a part of your family that you don’t leave behind,” says Coble.

According to Coble, the last time Missouri had this many orders of protection provisions in one bill might have been in 2000.

“It’s quite an achievement,” she says. “It was bipartisan and it was really to the credit of survivors who came forward and told their stories that this bill is going to signed into law today. I can’t emphasize that enough.”

The bill also expands the definition of stalking to include the use of third parties and electronic devices to stalk someone.

Roberts says the bill is a good first step, but more needs to be done. Coble agrees. She says the Second Amendment Preservation Act, recently signed into law by Gov. Mike Parson, has an impact.

She says a loophole in a 2016 state law should be closed that allows abusers convicted of domestic violence or those with a protection order against them to have guns.

“Unfortunately, Missouri is now second in the nation in the number of women who are killed by men. Those are primarily domestic violence homicides and the primary weapon used is a handgun. So, we have homicide prevention work to do,” she says.

To view Senate Bill 71, click here.