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Oct. 1, 2023 |  By: Rudi Keller - Missouri Independent

St. Louis asks Missouri Supreme Court to overturn police ‘bill of rights’ law

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By Rudi Keller - Missouri Independent

A law requiring cities to cover costs of damages when individual officers are found liable in police misconduct cases should be thrown out because it illegally imposes new duties and expenses on local governments, lawyers for St. Louis argued to the Missouri Supreme Court on Wednesday.

In defense of the law, Assistant Attorney General Jason Lewis told the judges that the challenge denied by a Cole County judge was fatally flawed because one plaintiff is a city employee and St. Louis hadn’t identified specific likely costs imposed by the 2021 legislation.

The challenged provisions are part of a bill that created a “Law Enforcement Officers Bill of Rights” requiring full due-process hearings for officers who are suspended or fired for disciplinary reasons. Other provisions added by lawmakers during debate allow lawsuits against cities that cut police funding, create a law against interfering with traffic during protests and regulate the use of electric fences.

St. Louis is appealing a ruling by Circuit Judge Jon Beetem that he did not see the duties and costs of the city as being “new or increased” by the law. Kathleen McGowan, an attorney representing St. Louis, said the city will have to hire more attorneys, pay out potentially large awards and hire more investigators for its police internal affairs investigative unit.

“The city is already the target of demands by former police officers to indemnify them,” McGowan told the court.

The city’s main challenge to the law is that it violates the 1980 tax limitation provisions of the Missouri Constitution known as the Hancock Amendment. Under those provisions, the state cannot require a “new activity or service or an increase in the level of any activity or service” by local governments beyond what state law required when the amendment was enacted.

Under questioning from the judges, McGowan said it doesn’t matter if the city was already doing any of the things required by the law. 

“It does not matters whether the city was exercising its discretion to do so before the law was passed,” she said.

The question, she said, was whether state law required the city to perform those duties in 1980.

The city also alleges the bill violates several other constitutional provisions, claiming it was amended to include subjects not covered by its title and illegally grants public money to pay the defense of officers accused of misconduct while off-duty.

In addition to the city, a single individual plaintiff — Deputy Director of Public Safety Heather Taylor — is listed on the lawsuit. She is identified in the case as an aggrieved taxpayer, a requirement for successful Hancock Amendment lawsuits.

One reason Beetem’s ruling should be upheld, Lewis told the judges, is because Taylor doesn’t have standing as a taxpayer because of her status as a city employee. The state raised that question with Beetem but he rejected it.

The state is asking the court to reverse Beetem on that point, Lewis said. 

“I don’t think those magic words are enough given her other connections to the city,” Lewis said. “She is not suing to vindicate her own private rights.”

The allegations that the city will have extra cost isn’t specific enough, Lewis said. The lawsuit has no reference to what the city was doing on the issues of due process and indemnification in 1980, he said, and Beetem was right to rule against the city.

Some of the judges were skeptical of that argument.

“Those are all procedural questions you are raising but you are trying to defend the decision on the merits,” Judge Paul Wilson noted.

Beetem’s decision was a declaratory judgment based on court filings. When a judge makes that kind of decision, it starts from a presumption that the allegations made in a case are true.

Judge Zel Fischer, adding to Wilson’s question, also noted that Lewis was mainly attacking the way St. Louis presented its arguments.

“It seems like you want the process to stop right at the door but you don’t want the presumption that the allegations are true,” Fischer said.

In response, Lewis said the way St. Louis prepared its case was to offer conclusions without specific facts.

McGowan got a chance to rebut and focused on whether Taylor has standing to sue. The city’s attorneys are representing her because that is what she wants, McGowan said.

“They failed to identify an authority that a city or municipality cannot represent a plaintiff or that Taylor cannot make the choice of counsel of her choosing,” McGowan said.

The seven-judge court did not issue a decision. Supreme Court cases usually take several months for a ruling.