Audio Recording of Police Once Again Found to Be Protected By Right to Free Speech. Author: Trial Lawyer Michelle Funkenbusch

Audio Recording of Police: Constitutionally Protected under the First Amendment According to St. Louis Trial Lawyer

First Ammendment
Audio Recordings of Police Protected By First Amendment According to Two Different Courts Of Appeal… U.S. Supreme Court Lets Rulings Stand.

St. Louis Civil Rights Trial Lawyer Michelle Funkenbusch isn’t surprised if this First Amendment ruling makes you scratch your head but simply put… “recording public police speech” = “speech”.  So yes… laws attempting to limit the audio recording of speakers (even though the person recording is not necessarily speaking)  can violate the recorder’s constitutional protections of free speech.

The U.S. Supreme Court on Monday delivered a blow to Illinois’ 50-year-old anti-eavesdropping law according to trial lawyer Funkenbusch.  The Illinois Eavesdropping Act, enacted in 1961, makes it a felony for someone to produce an audio recording of a conversation unless all the parties involved agree. It sets a maximum punishment of 15 years in prison if a law enforcement officer is recorded.   In refusing to hear the appeal, the U.S. Supreme Court let stand a lower court finding that major parts of the eavesdropping law violate constitutional protections of free speech.

The 7th Circuit majority found that the Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. In particular, the court noted that the statute restricts far more speech than necessary to protect legitimate privacy interests.

THE LAW AT ISSUE: Felony to Record Police Acting in Official Capacity Performing Public Duties

The provision at issue of the Illinois eavesdropping law is 720 ILCS 5/14-4 . It imposes a Class 1 felony penalty upon an individual who, in violating § 14-2 of the statute, records an oral conversation of a police officer or certain other public officials in the performance of their official duties. This provision and its explicit effect has long been criticized. In fact, the Illinois State Bar Association proposed legislation, originating through its Intellectual Property Section Council, amending the Illinois Eavesdropping Statute to eliminate the very effect of § 14-4.

In the appeals court ruling in May, the 7th U.S. Circuit Court of Appeals found that 720 ILCS 5/14-4– one of the toughest of its kind in the country – violates the First Amendment.

[Legal Fact of the Day:  The First Amendment states; “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This case came about when the ACLU of Illinois brought suit against Cook County State’s Attorney Anita Alvarez in 2010, after her office wanted to bring charges against ACLU staff recording audio of police officers performing their public duties in a public place and speaking loudly enough to be heard by a passerby.”

On May 8, 2012, the 7th Circuit U.S. Court of Appeals in Chicago sided with the ACLU, ruling that audio or audiovisual recording of police doing their public duties in a public place, particularly in the case at hand, is indeed a constitutionally protected right under the First Amendment right to free speech.

Civil right’s activists believe the ability to record helps guard against police abuse.   The most notorious incident was the infamous 1991 videotaping of LAPD officers beating Rodney King. The taping created a media scurry and national controversy over the effect of racial tensions between police and crime suspects.

The eavesdropping law’s proponents, however, say it protects the privacy rights of officers and civilians, as well as ensures that those wielding recording devices don’t interfere with urgent police work. Officers argue the recordings are often done by harassing paparazzi-like mobs at scenes where they are attempting to make legitimate investigations and arrests.  People attempting to You-Tube and Facebook arrests can get in the way of legitimate police business.

Nevertheless, based on the U.S. Supreme Courts denial to hear the appeal, free speech has found a win over the need for police to do their job unaffected by surrounding crowds.

On a historical note, it was not until the flag-burning cases of 1989 (Texas v. Johnson) and 1990 (United States v. Eichman), that the Supreme Court accepted that non-speech means of communicating applied to freedom of expression and freedom of speech.  According to St. Louis trial lawyer Michelle Funkenbusch, in the case at hand, we are seeing a new non-speech definition of speech… i.e. the act of recording communications.

This isn’t the first case on the issue of the “Right to Record”. Just last year, the First Circuit Court of Appeals held that the First Amendment provided and protected the right to record police in their official capacity in Glik v. Cunniffe, et al., No. 10-1764 (1st Cir. Aug. 26, 2011).  The First Circuit held, “A citizen’s right to film government officials … in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”

The Seventh Circuit Court of Appeals ruling on the Illinois law is consistent with this First Circuit ruling on recording laws in Massachusetts. This lack of conflict in the Circuits may be why the U.S. Supreme Court rejected hearing the case.

-Published November 27, 2012. Authored by Michelle M. Funkenbusch, St. Louis Trial lawyer

If you know someone who has been arrested or harassed for recording the police, contact trial lawyer Michelle Funkenbusch at 314-338-3500 to have your civil rights case reviewed.

 © 2012 The Law Offices of Michelle M. Funkenbusch, LLC.  All Rights Reserved. These materials may not be reproduced in any way without the written permission of The Law Offices of Michelle M. Funkenbusch, LLC. This blog is designed to provide general information on the topic provided and is posted with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this post and the blog is prepared by a lawyer, it should not be used as a substitute for legal advice. If legal advice is required, the services of The Law Offices of Michelle M. Funkenbusch should be sought privately.

 

Learn Food Warranty Law Before You take Another Bite: Missouri Personal Injury Lawyer Gives You Some Legal Thoughts to Chew on.

We ALLL have food on the brain the day before Thanksgiving. So Missouri personal injury lawyer, Michelle Funkenbusch sums up Food Hazard/Choking Law for You:

 

Missouri Personal Injury Lawyer on Food/Choking Hazard Law
Missouri Personal Injury Lawyer on Food/Choking Hazard Law

According to Missouri personal injury lawyer, Michelle M. Funkenbusch,  if you are injured  at a restaurant choking on food hazards (like bones/plastic/toothpicks), Missouri courts follow warranty law to determine liability.  The same is true if you purchase a turkey from your local grocery store, cookies from your local scout troop, or candy from a vending machine, or even a beer from your local pub.  Specifically, Missouri follows the common law principle that there is an implied warranty as between the retail dealer and the consuming purchaser in the sale of food, including a warranty of freedom from foreign substances which may be injurious to the purchaser. Degouveia v. H.D. Lee Mercantile Co., 231 Mo.App. 447, 100 S.W.2d 336, 339 (1936).  A claim for common law implied warranty of fitness for consumption requires that a Plaintiff show:  (1) the defendant sold a food substance meant for human(or animal) consumption;  (2) the plaintiff (or your animal) ate or drank the food/drink; (3) when the defendant sold the food/drink it was not fit for human(or animal) consumption; and (4) the Plaintiff was damaged as a direct result.  See Missouri Approved Instructions (MAI 25.02).

[RANDOM LEGAL FACT OF THE DAY: The MAI is the book of jury instructions relied on by courts to instruct the jury what must be proved in a particular case. The Missouri Supreme Court committee on jury instructions creates this book and it must be reviewed and used in every civil case that goes to trial.]

Grandma’s Food Almost Killed Me!!

What if you are at your Grandma’s house for Thanksgiving and you choke on a foreign substance that you could/would not have inspected in the food?  Assuming it was not added to the food by your grandmother (which of course will be a defense of the seller and manufacturer), you may have a case for a personal injury lawyer to review.  It doesn’t matter that you didn’t buy the food at a restaurant or store.  If the injured party in a choking case was not the purchaser of goods, but is a natural person who is a member of the family or household of the buyer, or was a guest in the buyer’s home, and it was reasonable to expect that such person would consume  the food/drink, then the seller or manufacturer can be liable under the Uniform Commercial Code. In other words, even though you lack “privity of contract” you may be able to recover and should seek the counsel of a St. Louis personal injury lawyer.    And yes, you could sue Grandma for negligent cooking… but that’s just not nice!

Missouri Personal Injury Case Against the Manufacturer??

If you have sustained personal injury  in Missouri as a result of the consumption of a foreign body or substance in a food or beverage sold, you may also, under proper circumstances, maintain an action to recover damages for such injury against the manufacturer of the product, on the ground of breach of an express or implied warranty.  In the absence of an express warranty (something actually written on the product or packaging), the law implies that the manufacturer or packer of foods intended for human consumption warrants that his products are fit for human consumption, and that he has used in the selection and preparation of such products the degree of care ordinarily exercised by persons skilled in the business of preparing and packing food for distribution or sale to the general public.

A  manufacturer, in the proper factual situation, is held as an “absolute insurer against knowable dangers”, and thus has an incentive to keep abreast of scientific knowledge to keep knowable dangers out of their products.  But, in some cases (like in the case of cigarettes), what is knowable can be difficult to prove without a great deal of expense and highly trained personal injury lawyers.  Ross v. Phillip Morris, 328 F.2d 3 (United States Court of Appeals Eighth Circuit 1964).

Other Theories a St. Louis Personal Injury Lawyer May File Suit for in A Food Hazard Case

You may also have the right to sue under other theories of personal injury. For example, you may have a claim under the Uniform Commercial Code for breach of an implied warranty for fitness for a particular purpose or breach of implied warranty of merchantability (fitness for an ordinary purpose) in general.  You may also have a claim for strict liability for a product defect or for failure to warn.   These are complicated claims and require the expertise of an experienced St. Louis personal injury lawyer.

Choking on Bones in the Turkey vs. Glass in the Turkey… why is one a good case and one a bad case?

To have a good case of liability, you usually have to have been injured by something foreign to the food you were eating, but not always.  Liability for injuries caused by a substance in food will often depend on whether the substance in question is considered to be “foreign.”  Under the so-called foreign-natural test that many other states rely on, there is no liability for injury caused by a substance that are considered “natural” to the food sold.  If the object is one that is naturally associated with the type of food in which it is found, it is not considered to be foreign, since the occasional presence of such objects is something to be anticipated by the consumer. Thus, for example, a hardened, crystallized grain of corn has been held not to be foreign to a package of corn flakes, and a bone has been held not to be foreign to a canned food product containing meat of the kind from which the bone came. However, some courts have held that objects which are natural to the type of food involved but which generally are not found in the style of the food as prepared may be deemed to be the equivalent of a foreign substance. Thus, in an action against a packer of canned chicken for injuries sustained from a chicken bone in chicken chow mein served at the plaintiff’s school and made from the defendant’s product, the chicken bone was held to be “something that should not be” in defendant’s product, which defendant had advertised as “boned chicken.” It has also been held in other states that breach of an implied warranty of fitness is shown by proof of a piece of oyster shell in a can of oysters sold by a defendant retailer, even if it appears that shells cannot be entirely eliminated in the canning of oysters.

Several states have rejected the “foreign-natural” test in favor of what is known as the “reasonable expectation” test. This test is based on what is reasonably expected by the consumer in the food as served, not what might be natural to the ingredients of that food prior to its preparation.

The “foreign-natural” test apparently continues to be the rule in most jurisdictions.  In states where the “foreign-natural” test is applied, even if an injured plaintiff can establish an otherwise legally sufficient claim of negligence, breach of implied warranty, or strict tort liability, a food processor may be free from liability as a matter of law if the deleterious object or substance in the food is natural to the ingredients of the product.  However, in states where the “reasonable expectation” test is the rule, liability might be incurred on any appropriate theory even for a “natural” defect if it is one not reasonably anticipated by the consumer. There appears to be a recent trend among several states toward acceptance of  the “reasonable expectation” test.

Missouri has yet to directly adopt either test mentioned above and leaves the fitness for consumption a question for the jury.  This grey area of the law is another reason why you should consult with an experienced Missouri personal injury lawyer.  

Michelle M. Funkenbusch has handled cases involving plastic in pudding, foreign substances on buffets, rat parts in frozen spinach, lead poisoning, and more. Contact her if you would like to discuss your potential case for free at 314-338-3500.

 © 2012 The Law Offices of Michelle M. Funkenbusch, LLC.  All Rights Reserved. These materials may not be reproduced in any way without the written permission of The Law Offices of Michelle M. Funkenbusch, LLC. This blog is designed to provide general information on the topic provided and is posted with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this post and the blog is prepared by a lawyer, it should not be used as a substitute for legal advice. If legal advice is required, the services of The Law Offices of Michelle M. Funkenbusch should be sought privately.

Safety Tips for Halloween from Personal Injury Lawyer Michelle Funkenbusch

Car v. Pedestrian Accidents Safety Checklist for Halloween

Personal Injury Lawyer Warns About Monkeying Around on Halloween Night

According to U.S. Census data, there are about 41 million potential trick-or-treaters between the ages of 5 and 14. Add that statistic to the fact that in 2010, 41 percent of all highway fatalities across the nation on Halloween night (6 p.m. Oct. 31 to 5:59 a.m. Nov. 1) involved a driver or a motorcycle rider with a BAC of .08 or higher, Halloween night requires added attention to safety to all those walking from house to house.

According to statistics from the U.S. Department of Transportation, in four out of six years between 2006 and 2010, more pedestrians under the age of 21 were killed by cars on Oct. 31 than on Oct. 30 or Nov. 1. Taking steps now and remembering them on Halloween night can prevent a pedestrian vs. car accident.

Here a few tips to reduce car v. pedestrian accidents this Halloween from Saint Louis personal injury lawyer Michelle Funkenbusch:

1.  Carry a flashlight or glowstick and wear glow-in-the-dark necklaces or attach reflective tape to costumes, wagons, and bags.

2.  Loose fitting clothing and oversized shoes can trip a trick-or-treater when crossing the street, so they should practice walking/running in their costume safely. Cut any costumes shorter if necessary.  

3.  Pirate swords and masks are cool, but are dangerous and masks can obscure vision. Thus, leave the swords at home (or make one from a poster board and aluminum foil) and use face paint instead of masks.

4. Remind kids to cross at crosswalks or at a corner with you.   They should also always make eye contact with drivers before stepping into the street and ALWAYS look left, right and left again.

5. For parents and kids, take out the headphones and no texting and walking especially when crossing the road.

6.  Avoid the decorative contact lenses — they could blur your vision at night.

7.  Many car accidents happen when a vehicle is pulling out of a driveway; kids should always look for cars when walking by a driveway.

8.  Stay with a group as you and your children are more visible.

9.  In urban areas, make sure children understand they cannot dart out between cars and that they may not see oncoming traffic.

Halloween trick-or-treaters need to be careful, but so do drivers. Drivers need to know that kids will be out of the streets looking for candy and not looking for cars. Avoid a car accident with a child by increasing your look-out for pedestrians. A few extra seconds could prevent a pedestrian vs. car accident!!!

Prepare now to have a safe and enjoyable Halloween. Be safe and watch out for those who aren’t!

 

CLICKABLE MISSOURI VOTER GUIDE: BE PREPARED FOR ELECTION TUESDAY NOVEMBER 6, 2012

VOTE NEXT TUESDAY, November 6th. 

Voter Guide for Missouri General Election Provided by the Law Offices of Michelle M. Funkenbusch

Finding your polling place and sample ballot:

 Absentee Voting:

  • If you will be absent from your voting district on election day, or meet one of the other qualifications for absentee voting, you can request a ballot and return it by mail or fax, or vote in an early/absentee voting location–but you’ll need to plan ahead.  Details and information about absentee voting are here.

Information about candidates:

How to find your candidate’s names, your US Rep, State Rep, and State Senate District numbers:

BEWARE that many/most district numbers have changed this year in Missouri, thanks to the new census data and re-districting. Your state representative district number is almost certainly changed, and many state senate districts and US representative districts have changes boundaries, too–sometimes by a little and sometimes by a lot. Here is how to find your updated info:

November 2012 Ballot Issues:

MISSOURI CONSTITUTIONAL Amendment 3

 Judges
OFFICIAL BALLOT LANGUAGE
Shall the Missouri Constitution be amended to change the current nonpartisan selection of supreme court and court of appeals judges to a process that gives the governor increased authority to:
  • appoint a majority of the commission that selects these court nominees; and
  • appoint all lawyers to the commission by removing the requirement that the governor’s appointees be nonlawyers?
There are NO estimated costs or savings expected if this proposal is approved by voters.
FAIR BALLOT LANGUAGE
“yes” vote will amend the Missouri Constitution to change the current nonpartisan selection of supreme court and court of appeals judges to a process that gives the governor increased authority to appoint a majority of the commission that selects these court nominees. This measure also allows the governor to appoint all lawyers to the commission by removing the requirement that the governor’s appointees be nonlawyers.
“no” vote will not change the current constitutional provisions for the nonpartisan selection of supreme court and court of appeals judges.

Proposition A

Law enforcement
Shall Missouri law be amended to:
  • allow any city not within a county (the City of St. Louis) the option of transferring certain obligations and control of the city’s police force from the board of police commissioners currently appointed by the governor to the city and establishing a municipal police force;
  • establish certain procedures and requirements for governing such a municipal police force including residency, rank, salary, benefits, insurance, and pension; and
  • prohibit retaliation against any employee of such municipal police force who reports conduct believed to be illegal to a superior, government agency, or the press?
State governmental entities estimated savings will eventually be up to $500,000 annually. Local governmental entities estimated annual potential savings of $3.5 million; however, consolidation decisions with an unknown outcome may result in the savings being more or less than estimated.
“yes” vote will amend Missouri law to allow any city not within a county (the City of St. Louis) the option of establishing a municipal police force by transferring certain obligations and control of the city’s police force from the board of police commissioners currently appointed by the governor to the city. This amendment also establishes certain procedures and requirements for governing such a municipal police force including residency, rank, salary, benefits, insurance, and pension.  The amendment further prohibits retaliation against any employee of such municipal police force who reports conduct believed to be illegal to a superior, government agency, or the press.A “no” vote will not change the current Missouri law regarding St. Louis City’s police force.If passed, this measure will have no impact on taxes.

Proposition B

Tobacco
Shall Missouri law be amended to:
  • create the Health and Education Trust Fund with proceeds of a tax of $0.0365 per cigarette and 25% of the manufacturer’s invoice price for roll-your-own tobacco and 15% for other tobacco products;
  • use Fund proceeds to reduce and prevent tobacco use and for elementary, secondary, college, and university public school funding; and
  • increase the amount that certain tobacco product manufacturers must maintain in their escrow accounts, to pay judgments or settlements, before any funds in escrow can be refunded to the tobacco product manufacturer and create bonding requirements for these manufacturers?
Estimated additional revenue to state government is $283 million to $423 million annually with limited estimated implementation costs or savings. The revenue will fund only programs and services allowed by the proposal. The fiscal impact to local governmental entities is unknown. Escrow fund changes may result in an unknown increase in future state revenue.
 
“yes” vote will amend Missouri law to create the Health and Education Trust Fund with proceeds from a tax on cigarettes and other tobacco products.  The amount of the tax is $0.0365 per cigarette and 25% of the manufacturer’s invoice price for roll-your-own tobacco and 15% for other tobacco products.  The Fund proceeds will be used to reduce and prevent tobacco use and for elementary, secondary, college, and university public school funding.  This amendment also increases the amount that certain tobacco product manufacturers must maintain in their escrow accounts, to pay judgments or settlements, before any funds in escrow can be refunded to the tobacco product manufacturer and creates bonding requirements for these manufacturers.
“no” vote will not change the current Missouri law regarding taxes on cigarettes and other tobacco products or the escrow account and bonding requirements for certain tobacco product manufacturers.
If passed, this measure will increase taxes on cigarettes and other tobacco products.

Proposition E

Health care
Shall Missouri Law be amended to prohibit the Governor or any state agency, from establishing or operating state-based health insurance exchanges unless authorized by a vote of the people or by the legislature?No direct costs or savings for state and local governmental entities are expected from this proposal. Indirect costs or savings related to enforcement actions, missed federal funding, avoided implementation costs, and other issues are unknown.
 
“yes” vote will amend Missouri law to prohibit the Governor or any state agency, from establishing or operating state-based health insurance exchanges unless authorized by a vote of the people or by the legislature.
“no” vote will not amend Missouri law to prohibit the Governor or any state agency, from establishing or operating state-based health insurance exchanges unless authorized by a vote of the people or by the legislature.
If passed, this measure will have no impact on taxes.

The officially approved ballot language CITED above for all four November ballot issues is here.

Key Statewide Races:

Governor:

Jay Nixon (I) – platform
Dave Spence – platform

Lieutenant Governor:

Peter Kinder (I) – website
Susan Montee – website

Secretary of State:

Jason Kander – website – wikipedia
Shane Schoeller – website – wikipedia

Treasurer:

Cole McNary – website – wikipedia
Clint Zweifel – website – wikipedia

Attorney General:

Chris Koster (I) – website – wikipedia
Ed Martin – website – wikipedia

All other offices/candidates

Editorial: Fireman’s Retirement Fund Trial Against St. Louis City This Week… Why The World Needs Lawyers

Local Trial Attorney Explains Complex Legal Issues At Stake in Trial Held This Week in Fireman Fund Case

Sometimes, you have to thank God there are geeky lawyers and judges willing to actually read the law.  The Fireman’s Retirement Fund trial against the City of St. Louis is the perfect example of why the world needs lawyers.  The mind-numbing law related to the Fireman’s Retirement Fund is more complicated than the Godfather trilogy. I am still trying to figure out who did what, when, and why (both in the Godfather and in the ordinances, city charters, statutes, and Missouri constitution).

While I have sometimes disagreed with the Honorable Judge Robert H. Dierker, I enjoy reading his opinions. Dierker is a renowned conservative, and sometimes controversial, intellectual St. Louis trial judge.  He was the perfect man to sift through years and years of law on who has authority to do what when it comes to pension plans and city charters.

Dierker was assigned the grave duty of wading through the “tangled skein of cases, statutes and constitutional provisions”, as he called them, that relate to the Fireman’s Retirement System in St. Louis.  Most lay people probably don’t have a strong grasp on the issues involved in this firestorm and neither do most St. Louis lawyers. . . because these issues deal with striking new 2012 city ordinances based on law that dates back fifty to a hundred years. Whenever you have to cite law in your argument from the 1800’s, you know it’s going to be a long night.

As to the main issues, in a nutshell, the City overhauled the pension plan for firemen because it became too taxing on the City budget.   But promises are promises, right?  The plaintiffs, the firemen, filed suit against the City to seek declaratory and injunctive relief to annul the ordinances enacted by the City in 2012.

One ordinance imposed restrictions on the authority of the FRS trustees to litigate changes in the City’s pension plan for firefighters.  Another ordinance purported to repeal the existing pension plan and substitute a new plan with significant reductions in benefits for firefighters not yet retired.

 In his lengthy preliminary opinion: Dierker wrote:

“Pension Crisis Looms Despite Cuts” warns a front page headline in the The Wall Street Journal, September 22-23, 2012, p. 1. Playing out their parts in this national drama, the trustees of the Firemen’s Retirement System of St. Louis (FRS for short), Local 73 of the International Association of Fire Fighters, three active firefighter members of FRS, one retired beneficiary, and the City of St. Louis are  before this Court as a result of the City’s efforts to curb its pension costs, which now consume an annual sum exceeding 50% of the actual payroll of active duty firefighters.”

On page 22 of his opinion, Dierker ruled that at this “preliminary injunction stage, the Court’s conclusion that the law forbids the merger of the FRS into the new plan militates in favor of granting a preliminary injunction to preserve the status quo.”  Dierker issued this preliminary injunction Sept. 28 — three days before the start of the FRS’ fiscal year.

Among other things, the questionable ordinance transfers the assets of the Firemen’s Retirement System, the current plan, to a new plan called the Firefighters’ Retirement Plan… FRS to the FRP… got it?

As described in Dierker’s 34-page order, the ordinance raises firefighters’ contribution rate from 8 percent to 9 percent and reduces the pension benefits. While firefighters currently may retire with full pension benefits after 20 years of service, they would not be entitled to retire with full benefits until they reach 55 years of age and have 20 years of experience.

In essence, this stopped the City’s attempted overhaul from taking effect. In the Memorandum and Order, Dierker concluded the City lacked the authority to merge the assets of the current pension system into a new system, although the city could repeal the current system.

In September, St. Louis Mayor Francis Slay blogged that Dierker affirmed the city’s “fundamental positions” when he concluded that the city can create a pension plan without state approval. While the judge said the city can’t merge the current and new pension systems, he said lawmakers seem to have contemplated having the two systems run parallel for at least some of the FRS members.

“We may have to amend the ordinance to comply with the judge’s order,” Slay said on his blog. “But, it creates a path — a local path — to stop the enormous cost increases in FRS, while being fair to taxpayers and firefighters.”

With the preliminary injunction Order, we have a pretty good idea what the Final Order will say, but nevertheless, the trial began Monday morning in Dierker’s courtroom.  So where does that leave us… I think at the end of Disc One of the Godfather Part II.

Hyperbaric Oxygen Therapy to Treat Nursing Home Patient Wounds

NURSING HOME NEGLIGENCE LAWYER ON WOUND CARE

Des Peres Hospital opened a new outpatient wound care center Monday that treats patients with chronic or non-healing wounds associated with, among other things, diabetes, pressure ulcers, trauma, peripheral vascular disease, poor circulation, immobility and other conditions.   The center offers two chambers for hyperbaric oxygen therapy to reduce swelling, fight infection and build new blood vessels, ultimately producing healthy tissue.

Pressure ulcers are the most common cause for a lawsuit against nursing homes, if they are due either to a lack of prevention or improper treatment.  The Wound Care Center by Des Peres Hospital is using some of the most advanced wound care technology available and is setting the standard of care higher for treatment of wounds.

In addition to the hyperbaric chambers, the new center has infectious-disease management, physical therapy, occupational therapy, laboratory evaluation, nutritional management, pain management, diabetic education, radiology testing and wound debridement (removal of dead tissue) to address the patient’s total health.  For more information, visit www.stlwoundcare.com.

Pressure ulcers, also known as bed sores, pressure sores, or decubitus ulcers, are wounds caused by unrelieved pressure on the skin. They usually develop over bony prominences, such as the elbow, heel, hip, shoulder, back, and back of the head. Pressure ulcers are serious medical conditions and one of the important measures of the quality of clinical care in nursing homes.

From about 2% to 28% of nursing home residents have pressure ulcers.

The most common system for staging pressure ulcers classifies them based on the depth of soft tissue damage, ranging from the least severe (stage 1) to the most severe (stage 4).

There is persistent redness of skin in stage 1; a loss of partial thickness of skin appearing as an abrasion, blister, or shallow crater in stage 2; a loss of full thickness of skin, presented as a deep crater in stage 3; and a loss of full thickness of skin exposing muscle or bone in stage 4. Clinical practice guidelines for pressure ulcers have been developed and provide specific treatment recommendations for stage 2 or higher pressure ulcers, including proper wound care.

Statistics from the CDC:

  • In 2004, about 159,000 current U.S. nursing home residents (11%) had pressure ulcers. Stage 2 pressure ulcers were the most common.

  • Residents aged 64 years and under were more likely than older residents to have 

  • pressure ulcers.

  • Residents of nursing homes for a year or less were more likely to have pressure ulcers than those with longer stays. 

  • One in five nursing home residents with a recent weight loss had pressure ulcers. 

  • Thirty-five percent of nursing home residents with stage 2 or higher (more severe) pressure ulcers received special wound care services in 2004.

Data from the national nursing home survey, 2004, published in NCHS Data Brief, No. 14, February 2009.

If a hard-to-heal wound is not treated, it may get bigger and deeper over time.  This may significantly increase the patient’s chances of infection, which if severe enough, may require hospitalization. If the tissue damage from infection is extensive, the patient may need surgery or amputation.

If your loved one has received improper care or you are not certain whether a nursing home has acted below the standard of care, contact Michelle Funkenbusch at 314-799-6602 for a free consultation.  As a trial lawyer, Funkenbusch has been involved in many nursing home cases and has witnessed the lack of training of staff, the improper care, the lack of documentation of records, and the abuse that occurs regularly.   A lawyer needs to be properly trained to read nursing home records. Contact Funkenbusch for more details about her extensive experience in this area.

 

© 2012 The Law Offices of Michelle M. Funkenbusch, LLC.  All Rights Reserved. These materials may not be reproduced in any way without the written permission of The Law Offices of Michelle M. Funkenbusch, LLC. This blog is designed to provide general information on the topic provided and is posted with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this post and the blog is prepared by a lawyer, it should not be used as a substitute for legal advice. If legal advice is required, the services of The Law Offices of Michelle M. Funkenbusch should be sought privately.

 

Red Light Cameras… Here to Stay

They are here to stay…

Missouri Red Light Camera Review

The Creve Coeur City Council could hear an ordinance as soon as next week that would move to extend the city’s use of “Red Light” cameras.

As a lawyer, the MOST common question I am asked from friends and family is whether red light camera violations are enforceable.  The answer usually depends on where you got the ticket.

red light camera is a traffic enforcement camera that captures an image of a vehicle which has entered an intersection against a red traffic light.  By automatically photographing vehicles that run red lights, the camera produces evidence that assists authorities in their enforcement of traffic laws. Generally the camera is triggered when a vehicle enters the intersection after the traffic light has turned red. Typically, a law enforcement official will review the photographic evidence and determine whether a violation occurred. A citation is then usually mailed to the owner of the vehicle found to be in violation of the law.

On August 29, 2012, red light cameras survived yet another class-action lawsuit in Missouri.  A Jefferson County judge rejected a suit that aimed to prohibit the use of red light cameras in Arnold, which became the first Missouri city to deploy the cameras in August 2005.

In his ruling August 29, Judge Mark Stoll noted that the arguments of the defendants — the City of Arnold and camera company American Traffic Solution — were the “most persuasive.”

With this Arnold ruling, attorneys with the Simon Law Firm of St. Louis have now lost four decisions that sought to prohibit use of the cameras in Kansas City, Arnold, Florissant and Creve Coeur.

Despite at least a half-dozen legal challenges statewide, only two rulings have gone in favor of those opposed to the cameras.

In February 2012, a St. Louis Circuit Court judge ruled the city ordinance void. (That decision is under appeal.) In his ruling February 17, Judge Mark Neill upheld a partial judgment he made last May that found the city improperly enacted its red-light camera ordinance without enabling legislation from the Missouri legislature.

And in 2010 the Missouri Supreme Court held against the way Springfield enforced its citations.

For more information on the Creve Couer red light camers see: http://crevecoeur.patch.com/articles/red-light-cameras-seem-likely-to-stay

© 2012 The Law Offices of Michelle M. Funkenbusch, LLC.  All Rights Reserved. These materials may not be reproduced in any way without the written permission of The Law Offices of Michelle M. Funkenbusch, LLC. This blog is designed to provide general information on the topic provided and is posted with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this post and the blog is prepared by a lawyer, it should not be used as a substitute for legal advice. If legal advice is required, the services of The Law Offices of Michelle M. Funkenbusch should be sought privately.

Funkenbusch Attends Art Auction Charity Event to Benefit Non-Profit PayBack, Inc.

Trial Attorney Michelle Funkenbusch attended the PayBack Art Auction and Friends of PayBack Party on October 1, 2012.  Funkenbusch is the Immediate Past President and Executive Board Member of the 501(c)(3) charity PayBack, Inc..  The non-profit held its annual Reception and Art Auction at Mark and Cheryl Levison’s historic Compton Heights house.

PayBack, Inc. Art Auction and Friends of PayBack Party

All proceeds from fundraiser event benefit PayBack, Inc. The event was sponsored by BJC HealthCare, Lashly & Baer, P.C., and Datamax.The guests enjoyed an elegant reception with cocktails and hors d’oeuvres, and music by Jeff Riley Jazz Suite Orchestra.

An Art Auction featured St. Louis local artists Jennifer Hayes, Scott Lokitz, Myles Keough, Crystal Rolfe and JA Chapman.

David Shaller, Attorney at Law, was the 2012 Friends of PayBack Honoree, and was a founding Board members of 1983. For more than 30 years, St. Louis Attorney David Shaller has helped families and individual with their legal needs. David Shaller received the 2012 Community Spirit Award Winner, Corporate Sponsorship Award Winner, and Lifetime Service Award Winner.

PayBack, Inc. is non-profit corporation specializing in securing funding for juvenile restitution programs. 70% of the juveniles, who participate in PayBack, never return to the Family Courts as re-offenders. More than half a million dollars has been returned to metro area crime victims by the youth in the PayBack program.

PayBack, Inc. is a juvenile restitution/community service organization that has been serving the greater St. Louis Metropolitan area since 1982. The  offices are currently located in the St. L

ouis Family Court Building. PayBack’s goal is to raise money to fund our “restorative justice” program whereby juvenile offenders work at other local non-profits (like the YMCA or Big Brothers/Big Sisters) around our community to earn money to pay back their victims. Our program is unique in that the victims actually get paid back up to $500.00 when PayBack sends a check to the court for the hours the child worked. In addition, the children learn accountability and job skills while a long list of non-profits get volunteers. The community, the victims, and the children all gain from this wonderful program that restores justice. Funding for Payback is entirely supported by voluntary contributions, grants, and donations from foundations.

Upcoming on Sat. Oct. 20, 2012, is PayBack, Inc.’s 3rd Annual Bocce Tournament at Milo’s on The Hill, St. Louis, MO, 5201 Wilson at Marconi, 63110. The first round starts at noon.  $100 per each 4 person team/ $25 a person. Double Elimination. Registration for each team of 4 includes:   • one appetizer (except antipasto platter) and • one pitcher of domestic beer

For photos from the 2012 Art Auction event: http://laduenews.mycapture.com/mycapture/folder.asp?event=1542554&CategoryID=72747&ListSubAlbums=0&thisPage=2

Supreme Court of Missouri Nominees Announced

We will have a new Supreme Court Justice in the State of Missouri come this December.  The Honorable Richard B. Teitelman, chief justice of the Supreme Court of Missouri and chairman of the Appellate Judicial Commission, announced that the commission selected its panel of nominees to fill the vacancy on the Supreme Court of Missouri. This vacancy was created when Judge William Ray Price Jr. retired in August 2012, after serving 20 years on the Court.  Price had served two terms as chief justice.

After more than six hours of public interviews, nearly three hours of deliberations and six rounds of balloting, the nominees are: Hon. Michael W. Manners, five votes; Stanley J. Wallach, four votes; and Paul C. Wilson, four votes.

Manners is a circuit judge in the 16th Judicial Circuit (Jackson County). He was born Sept. 25, 1950. He earned his bachelor of arts degree, summa cum laude, in 1972 in history and political science from Central Missouri State University in Warrensburg, Mo., and his law degree in 1976 from the University of Missouri-Kansas City School of Law. Manners lives in Lee’s Summit.

Wallach is an attorney with the Wallach Law Firm in St. Louis. He was born Aug. 24, 1965. He earned his bachelor of arts degree, with honors, in 1987 in political science and Russian from Duke University in Durham, N.C., and his law degree in 1992 from the University of Chicago Law School. Wallach lives in Kirkwood, Mo.

Wilson is a member of Van Matre, Harrison, Hollis, Taylor & Bacon PC in Columbia, Mo. He was born May 23, 1961. He earned his bachelor of arts in 1982 from Drury College in Springfield, Mo., and his law degree, cum laude, in 1992 from the University of Missouri-Columbia School of Law. Wilson lives in Jefferson City.

The governor has 60 days to select one member of the panel to fill the vacancy. Should he fail to do so, the Missouri Constitution directs the commission to make the appointment.

In addition to Teitelman, the commission is composed of attorneys Thomas M. Burke of St. Louis, J.R. Hobbs of Kansas City and John D. Wooddell of Springfield and lay members Cheryl M. Darrough of Columbia, John T. Gentry of Springfield and Donald L. Ross of St. Louis.

Another Open Container Bill Fails… No Surprise to St. Louis DUI Attorney

Drinking on The Move in Wentzville: Thoughts from a St. Louis DUI lawyer.

It is not shocking that Missouri (whose unofficial state wildlife is the “Busch”) is known for a highly laissez-faire approach to alcohol regulation. For instance, there is no state-wide law against drinking in public. You can even legally let your children drink.  (See RSMO 311.310).   I am not saying this is a good idea by the way.  There is also no state wide law against open containers in the possession of passengers in vehicles.  This pro-alcohol reputation, supported by a strong alcohol industry lobby, continues to grow based on a recent decision by the Board of Alderman in Wentzille.  This is the second time in a few months that the alderman have voted down a proposed open container law supported by the local Police Chief.

The bill would have banned passengers in motor vehicles from drinking from, or possessing, open containers of alcoholic beverages while driving through Wentzville. Drivers are already banned from drinking by state-wide laws.  The Chief argued that the proposed law is a way to catch drunk drivers “in the act”, as they would not be able to just pass a drink off to a passenger. One argument against the law is that this bill is municipal government overreach and that these laws should not differ from municipality to municipality.

A little over 3% of the cities across the state have municipal laws banning open containers in vehicles including, but not limited to:


Bates City, Bellefontaine Neighbors, 

Cabool, Clarence, Clarkson Valley, 

Columbia, Crystal City, Cuba, Elsberry, 

Foristell, Harrisonville, Hermann, Independence,

Lamar, Lake Lotawanna, Lexington, 

Liberty, Licking, Linn, Maryville, 

Neosho,  New Franklin, Normandy, 

Osage Beach, Salisbury, St. Charles, St. John, 

Trenton, Verona,  Warson Woods, Weston.

This list includes those with bans as of 2005.  There is no more recent comprehensive list that I can find at this time. This list of course means that in 96% of the cities in this state… open containers in vehicles are permissible if in possession of a passenger.  Note, that if the alcohol is in the console or cup holder… a prosecutor will argue it is in the driver’s possession, not a passenger.

What About Buses?

There IS a state law against drinking intoxicating liquor of any kind in a passenger bus except a chartered bus.  (See RSMO 578.315) .   

If you are uncertain about the alcohol laws in your municipality, contact St. Louis DUI Attorney Michelle M. Funkenbusch to assist you, 314-338-3500.

Sources: 

Roberts, J. (2005). Missouri State and Local Open Container Laws. Report 30-2005. Retrieved 7/12/12, from University of Missouri Columbia, Institute of Public Policy. Web site: http://ipp.missouri.edu/files/ipp/attachments/missouri_state_and_local_open_container_laws.pdf

http://www.moga.mo.gov/statutes/C500-599/5780000315.HTM

Read more about the Wentzville decision at:  STLToday Article