Category Archives: Court News

Post Ferguson Fear of the Grand Jury: Fox 2 Questions Trial Attorney Michelle Funkenbusch On Move to Grand Jury of Furrer’s Felony Case

Is a Grand Jury still Grand???

Reporter Andy Banker  from Fox 2 stopped by the office this afternoon to talk about the move of Mayor Mark Furrer’s case to a grand jury at the last minute from a preliminary hearing.  As you know, the proceedings are secret and we cannot watch or be part of the process as the law firm for the victim. We represent cyclist Randy Murdick who alleges the Mayor of Sunset Hills intentionally ran him off the road. Reporter Banker was wondering if we have concerns over the last minute move to a grand jury.

While I do not have blind faith in the legal process, I do, in fact, have faith in our justice system that an indictment will follow.  I have personally seen in my criminal defense work, the St. Louis County Prosecutor’s Office fight zealously to protect our streets from people they believe endanger us on the road.  We will find out in the next few days the fate in the criminal court of the Mayor of Sunset Hills. Let us hope that the people that lost faith in the justice system over “Ferguson” will see that the Grand Jury is still grand.

Michelle M. Funkenbusch


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.


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:

© 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.

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.