Category Archives: Legal Articles

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

314-338-3500

Sunset Hills Mayor’s Felony Case Set For Grand Jury Wednesday; Board of Aldermen set to Vote on Impeachment Ordinance Tuesday

Grand Jury to be used to determine probable cause in case of assault of a cyclist by local Mayor Mark Furrer. The victim is represented by cyclist and St. Louis Trial lawyer Michelle Funkenbusch.

The felony assault and property damage case against Sunset Hills Mayor Mark Furrer has been switched from the preliminary hearing docket to the St. Louis County Grand Jury. The case stems from allegations Mark Furrer intentionally hit cyclist Randy Murdick with his car after yelling “get off my $#^&ing road” several times. As many of you know, our law firm represents the cyclist in the personal injury case and we make it our regular practice to advocate for cycling safety and for sharing the roads. We have been asked many questions about the pending felony case and impeachment process.  The Grand Jury hearing is scheduled this Wednesday December 10, 2014. The St. Louis Grand Jury process has been in the news a great deal lately with the “no true bill” finding regarding Ferguson Police Officer Darren Wilson in the shooting death of Michael Brown.

On October 1, 2014, a Complaint was filed in St. Louis County, Missouri against Sunset Hills Mayor Mark Furrer for Second Degree Assault and First degree property damage, C and D felonies, following his attempt to run Randy Murdick off the road. Randy was on his bicycle while the Mayor was driving his red Mercedes convertible. According to the Prosecutor’s office, the investigating officer will be the only one to testify. The victim has not been asked to testify. The proceeding, like all Grand Jury proceedings, is closed to the public. We will likely find out the results Thursday.

Three independent witnesses support Randy Murdick’s version of the events. The Mayor has claimed in the media that Randy tried to hang onto his convertible after running a stop sign. Randy has vehemently denied the Mayor’s allegations and those allegations are not supported by any witnesses.

SUNSET HILLS BOARD OF ALDERMAN OPEN MEETING TUESDAY DECEMBER 9th, 2014 TO VOTE ON IMPEACHMENT ORDINANCE

Tuesday December 9th, 2014 at 7:00 p.m. at the Sunset Hills Community Center will be the monthly Sunset Hills Board of Alderman meeting wherein they will be voting on the impeachment procedures introduced at the last meeting.  At the beginning of the meeting, you have to make a request to speak if you wish to do so. You will have three minutes. We encourage all Sunset Hills residents and cyclists in our area to attend and voice your opinion at the meeting.   We have learned that the Mayor may attempt to limit the opportunity to speak to only Sunset Hills residents and businesses.  We were given a copy of a letter today wherein he is seeking Board of Alderman support to shut down non-residents from voicing their opinions. As a St. Louis Trial Law Firm, we believe that any attempt to limit non-residents from speaking is unconstitutional and we hope that you show up and make your voice heard if you use the roads in Sunset Hills or believe in supporting safety for all the vulnerable road users.

Some alderman, residents, and non-resident cyclists have been very vocal about the need to impeach the Mayor for his actions in this case and for other unrelated reasons. Cyclists and supporters of the Mayor both attended the last meeting heating up the room during the open forum. Some believe he should not be impeached unless he is found guilty of a crime first, while others believe the unethical actions he admitted to in the media, along with his actions since the alleged crime occurred, is enough to impeach. Missouri state law does not require a finding of guilt to impeach a Mayor in a city the size of Sunset Hills; however there are currently no ordinances in effect regarding impeachment procedure in Sunset Hills.  The findings of the Grand Jury and likely the police report will be available before the vote to impeach the Mayor, which could come as early as January or February 2015.

WHY A GRAND JURY IN THE CRIMINAL CASE?

Some people may be confused as to why a Grand Jury is necessary as a “Complaint” was filed on October 1, 2014. That is true, however, there must still be a finding of probable cause to proceed to trial in Missouri. Here, the criminal justice process starts by the filing of a document called a “Complaint” wherein the prosecutor states that they believe probable cause exists that the defendant committed certain crimes. This filing is followed by either a preliminary hearing OR a Grand Jury proceeding resulting in an indictment if a “true bill” is issued. The prosecutor’s office in the Mayor’s case decided to send it to the grand jury either before or after it was scheduled for preliminary hearing at the last docket. This is within their right to switch to a Grand Jury.

In Missouri, a defendant who is subject to indictment by Grand Jury is denied the right to present evidence to explain or contradict the charge, although as we saw in the Wilson case, a prosecutor may choose to present contradictory or exculpatory evidence. The Mayor has no constitutional or other right to appear before the Grand Jury and will only be there if the prosecutor calls him as a witness. The handling of the Darren Wilson Grand Jury evidence and the fact he testified was unusual. It is unlikely the Mayor would be called as a witness, although not impossible. There are no defense attorneys involved in a Grandy Jury hearing. The fact that this case went to a Grand Jury is significant because if it went to a preliminary hearing the Mayor would have had the right to appear and cross-examine witnesses through counsel, unlike the grand jury indictment process. Plus, the public and media would be able to see the testimony in a preliminary hearing.

Even if a true bill is issued, the indictment is merely an accusation against the Mayor. The true bill is not “evidence” that the Mayor committed the crimes charged. He still has a right to a full criminal trial. However, as far as impeachment goes, if probable cause is found the “true bill”, if issued, could be relied upon by the Board of Alderman, along with the police report, for purposes of impeachment.  Also, if a “true bill” is issued, an arraignment would then be scheduled, which is the formal presentation of charges against the Mayor in open court. During an arraignment, the charges would be read to Mark Furrer by a judge in the St. Louis County Circuit Court, and then Furrer would be asked to plead guilty or not guilty to the charges. They can also ask to waive the reading and plead guilty or not guilty in paperwork. During this time is also when he may be offered a deal to avoid trial on the charges.

If you have any questions about a criminal or personal injury case arising our of crimes against cyclists, please do not hesitate to contact our firm. We would be honored to advocate on your behalf.

Michelle M. Funkenbusch

St. Louis Trial Lawyer and Bike Advocate

314-338-3500

 

Congress did something SMART… no really: St. Louis Trial Lawyer Breaks Down The SMART Act of 2013.

How to Handle Medicare Liens on Personal Injury Cases

While we were all worrying about falling off the fiscal cliff, Congress and the President did something SMART… literally.   The SMART Act was signed by President Obama on January 10, 2013. It makes numerous complicated administrative changes to Medicare that effect personal injury cases where the employee or plaintiff is on Medicare and has had treatment paid by Medicare.  While most of this may be over the average person’s head, if you stop reading now, just know that something “good” happened to reduce bureaucracy and to speed up settlements that need the federal government’s approval.

For example, when a senior citizen covered by Medicare is treated after an accident or an injury, it’s generally paid for by Medicare. Those medical expenses must then be reimbursed through insurance or a legal settlement. But, the process by which that was to happen has not been running smoothly. The Strengthening Medicare and Repaying Taxpayers, or SMART, Act aims to remedy that.

Many claims involving Medicare beneficiaries could not settle because the parties  could not determine their respective obligations to reimburse the federal government in the Medicare Trust Fund.  The result was a lose-lose-lose for the beneficiary, the defendant, and the Medicare Trust Fund – all because under the former law, Medicare had no pathway to provide the amount due the Trust Fund for “conditional payments” – those payments previously made by Medicare for the injury that will be covered by the settlement.

The SMART Act  fixes this problem by creating a process for Medicare to advise parties in the process of settling, before settlement, of how much is owed, so that the parties can appropriately allocate and resolve their Medicare obligations during settlement. By requiring Medicare to provide the amount due within 65 days of a request, the settling parties will know how much money has to be set aside for Medicare, and factor that amount into their final settlement.

There were numerous other changes. I have summarized some of them for you below.  These amendments will require changes to settlement procedure, lien resolution and reporting, and release language.  If you are on Medicare and have a personal injury case, make sure you have a lawyer that knows and understands the SMART ACT.

SUMMARY OF SOME OF THE CHANGES

Access to Information About How Much Medicare Paid

Old Law:   Did not require Medicare to give immediate access to the conditional payments that were made on behalf of a claimant.

New Law:  Up-to-date Conditional Payment Information Available Online

Claimants and responsible reporting entities (RREs, as defined by 42 U.S.C. § 1395y(b)(8)) will now have access to up-to-date information on the claims for which conditional payments have been made by CMS. Again,  conditional payments are those payments previously made by Medicare for the injury that will be covered by the settlement. The SMART Act requires CMS to make claims information—including payment amounts and information regarding claims related to a potential settlement, judgment, or other payment—available to claimants or their authorized representatives and RREs (that have obtained the claimant’s consent) through a secure website. This information must be updated no later than fifteen (15) days after the date that payment is made.

Additionally, claimants or RREs now may provide notice to CMS that a settlement, judgment, award, or other payment is reasonably expected and the date of the expected payment up to 120 days before the reasonably expected date of the payment.

CMS already has a web-based portal for claims information, the Medicare Secondary payer Recovery Portal [https://www.cob.cms.hhs.gov/MSPRP/], which appears to satisfy the requirements of the SMART Act. Final regulations must be promulgated by  October 10, 2013, nine (9) months after date of enactment, the effective date of this provision.

Pre-Settlement Lien Demands

Old Law:  Medicare could not provide a final lien demand until after settlement.  The inability to finalize Medicare’s reimbursement interest prior to settlement complicated settlement and lien resolution.

New Law: Establishing Conditional Payment Exposure Prior to Settlement

The SMART Act provides a mechanism by which a claimant or RRE (responsible reporting entities as defined by 42 U.S.C. § 1395y(b)(8)) determines liability for conditional payments prior to a settlement, judgment, award, or other payment for conditional payments. To do so:

  • the claimant or RRE (with the claimant’s consent) must obtain a statement of reimbursement amount from the website during the “protected period”—defined as the time, if any, after the expiration of the federal government’s response period following notice of a settlement, judgment, award, or other payment
    • the federal government’s response period is 65 days following notice
    • it may be extended by an additional 30 days if additional time is required to address claims for which payment has been made
    • it does not include any days where there was a failure in the claims payment and posting system due to exceptional circumstances as defined by regulation
  • the related settlement, judgment, award, or other payment must be made during that period, and
  • the last statement of reimbursement downloaded during that period and within three (3) business days of the date of the settlement, judgment, award, or other payment shall constitute the final conditional amount subject to recovery by the federal government related to that settlement, judgment, award, or other payment.

Final regulations must be promulgated by October 10, 2013, nine (9) months after date of enactment, the effective date of this provision.

Minimum Values Established

Old Law: The Medicare Lien reimbursement process currently applies even to settlements of minimal value.

New Law:  The SMART Act establishes a threshold below which the lien reimbursement and Section 111 reporting obligations do not apply.  The threshold will be established each year beginning in 2014.  The minimum threshold exception does not apply to settlements concerning alleged ingestion, implantation or exposure (including asbestos).

UPDATED July 31, 2013:

To further explain the minimum values… the SMART Act requires HHS to set a “single monetary compliance threshold” for certain claims, starting on November 15, 2014.  The purpose underlying that amendment is to avoid expending resources in seeking to recover conditional payments the value of which is less than the expense necessary to recover them. This is sort of a common sense provision as you will.  The “monetary compliance threshold” that the Act contemplates would be a dollar figure that defines the minimum value of a conditional payment for which Medicare could pursue reimbursement without wasting more resources in seeking to recover the payment than the claim itself is worth.  The SMART Act requires the Secretary of HHS to set and adjust that minimum threshold figure no later than November 15 each year, starting in 2014.  Attorneys should calander this date to learn the threshold for that year.

The monetary compliance threshold does not apply to all conditional payments.  More specifically, the monetary compliance threshold applies only to (1) liability TPOC reporting (total payment obligation to the claimant); and (2) conditional payments pertaining to “alleged physical trauma-based incidents,” but not incidents based on alleged ingestion, implantation, or exposure.

§111 Penalty Modification

Old Law: Companies that reported settlements involving Medicare beneficiaries to CMS either late or erroneously were subject to automatic fines of $1,000 per-day, per-claim.

New Law: Such penalties are now discretionary, not automatic.  HHS is directed to create “safe harbors” for companies that report in good faith, despite being late or in error. §203, SMART Act.

No SSN or HICN

Old Law: Claims professionals and settlement parties use claimants’ Social Security numbers (SSNs) or Health Insurance Claim Numbers (“Medicare numbers”) to access claimant health records. This situation has obvious and troubling privacy implications.

New Law: Within 18 months, the Secretary of HHS is to change §111 of Mandatory Insurance Reporting to make use of SSNs and Medicare numbers optional rather than required. Medicare beneficiaries are understandably reluctant to provide this information – given the high incidence of identity theft.  The SMART Act protects beneficiaries’ sensitive personal information while also reducing professionals’ liability exposure in the event of subsequent beneficiary identity theft. §204, SMART Act.

UPDATE:  July 31, 2013

I received a call from a lawyer today asking if SSN’s are still required as his client does not want to give out his SSN. As of this date, SSN’s are still required.   The Act provides that CMS must implement this requirement within 18 months of the SMART Act’s enactment, or by the middle of 2014.  That deadline is not a firm one, however.  The Act permits the Secretary of the Department of Health and Human Services (HHS) (the agency in which CMS operates) to request an extension of that 18-month deadline by “one or more periods up to one year each” if the Secretary believes that eliminating the use of social security numbers and health insurance claim numbers by the operative deadline “threatens patient privacy or the integrity of the secondary payer program[.]”  I will keep monitoring for changes but I suggest if you are an attorney and uncertain that you contact the HHS Department.

Three-Year Statute of Limitations

Old Law:   The MSP statute permits the government to pursue settling defendants for unsatisfied Medicare Liens in certain circumstances, even after the defendant has paid settlement funds to the plaintiff. Unclear law and inconsistent court rulings left settlement parties without a clear answer on the scope of the statute of limitations for the government to bring an action seeking conditional payment.

New Law: The SMART Act codifies a 2010 U.S. District Court decision – U.S. v. Stricker – which held that the government must file a complaint within three years of receiving notice that a judgment or settlement has been reached. §205, SMART Act.

Full Text of H.R. 1845: http://www.gpo.gov/fdsys/pkg/BILLS-112hr1845rds/pdf/BILLS-112hr1845rds.pdf

 

A Lawyer’s Timeline Under SMART for Finding Out How Much to Pay Back Medicare

For those lawyer fans of this blog, starting in October 2013, you should follow these rules to obtain a Final Conditional Amount.

  1. T-120 days to settlement – Send an Expected Settlement Notice to the MSPRC;
  2. T-115 days to settlement – Check to see if the MSPRC received the Expected Settlement Notice.  Everyone knows the MSPRC response, “we don’t have that in the file” or “I don’t see that here.”  If you don’t check you might waste the entire process.
  3. T-55 days to settlement – You should receive notice that the Final Conditional Amount is available for download on the MSPRC website, or more likely, the Medicare Secondary Payer Recovery Portal (MSPRP).  If you have not, contact the MSPRC to check the status.  Keep in mind the rule states they have 65 days from receipt of your notice – so we will have to keep track of how they define the word receipt.  If your case qualifies for “exceptional circumstances” the MSPRC will tell you it needs another 30 days to process the Final Conditional Amount.
  4. T-25 days to settlement – You should receive notice that your exceptional circumstances request is completed and the Final Conditional Amount is available for download.
  5. T-3 days to settlement – You must download the Final Conditional Amount from the designated website.  If you do so at 4 days to settlement it is apparently invalid and does not constitute a Final amount.  If you do so more than 3 days after settlement (we believe after is still okay – the rule uses the word “within”) it is also invalid.

-Published January 31, 2013.  Authored by Michelle M. Funkenbusch, St. Louis Trial lawyer

If you know someone in need of a personal injury lawyer, please contact St. Louis Personal Injury Lawyer Michelle Funkenbusch at 314-338-3500 .

 

 © 2013 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.

 

How To Find Out What is On Your Missouri Driver’s Record For Free! Answers from a St. Louis Traffic Ticket Lawyer

The Missouri Traffic Ticket Point System and Free Driver’s Record Over the Phone: Advice from a Traffic Ticket Lawyer

Do you fear you are accumulating points on your license? Here is how to find out what you have on your record and what you risk with new tickets.

The First Step: What is Already on Your Missouri Driver’s Record? Call (573) 526-2407!

You can find out what is on your Missouri driver’s record for FREE by calling the Missouri State interactive voice response system at (573) 526-2407 – available 24 hours a day, 7days a week. You don’t need a traffic ticket lawyer to do this!  Make sure to have your driver’s license number available. If you have questions about what Missouri traffic tickets are listed on your driver’s record or if you want to know about a suspension, or revocation on your Missouri driver record, call this number. It will tell you when you had a prior alcohol suspension of your license and whether you have officially been reinstated.

The Second Step: Finding Out What Points You Might Receive for New Violations

If you just received a ticket, but don’t have a traffic ticket lawyer, and want to know what points you might get on your record if you don’t get the ticket reduced to a nonmoving violation, you can refer to this chart: http://dor.mo.gov/forms/899.pdf .

The Third Step: What Happens When You Accumulate Points

Too many points means you lose your privilege to drive in Missouri!!! For example, a speeding ticket and no proof of insurance may mean 8 points on your license and you will be suspended from driving by the Department of Revenue!

It is not easy to figure out the point system. Here are the details:

If you accumulate a total of 4 points in 12 months, the Department of Revenue will send you a point accumulation advisory letter.

If you accumulate a total of 8 or more points in 18 months, the Department of Revenue will SUSPEND your driving privilege.

1st suspension – 30 days
2nd suspension – 60 days
3rd or more suspensions – 90 days

The Department of Revenue will REVOKE your driving privilege for one year if you accumulate:
12 or more points in 12 months
18 or more points in 24 months
24 or more points in 36 months
When your driving privilege is reinstated following a Point Suspension or Revocation, the Department of Revenue reduces your total points to 4.
Every year you drive without getting new points on your record, the points will be reduced.

1 year — total remaining points reduced by one-third
2 years — remaining points reduced by one-half
3 years — points reduced to zero

Although your points may be reduced to zero, certain types of convictions must remain listed permanently on your Missouri driver record.

It is never a good idea to accumulate points as you can quickly get to a suspension by receiving just a few traffic tickets.  Further, your insurance rates can skyrocket when they do annual driver’s record checks to determine premiums. If you need advice about your traffic related matters, Funkenbusch has handled hundreds of tickets for her clientele.  She has been able to get Driving While Suspended charges dismissed, speeding tickets reduced to littering, and can help you clean up your record with the DOR if you are looking to purge your old tickets from your record.   Call a trial expert and traffic ticket lawyer at the Law Office of Michelle M. Funkenbusch, 314-338-3500, to have your traffic tickets resolved.  Free consultation.

Traffic Ticket- SEND US YOUR INFO VIA EMAIL!!!

We would love to hear from you so contact us as soon as you get the ticket. Unless other arrangements have been made, you MUST appear on your court date until you have paid us to hire us. If your court date is in the next week, fill out the form but make sure to call us to confirm we can enter our appearance before your court date. Again, Please fill out this form and we will get in touch with you shortly.
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Do you need a Will? Mention this Article for $50.00 off a Basic Will Package.

If You’re One of the 70% of Americans Without a Will, Read On…

Do you have a will? Between half and two-thirds of American adults don’t. Do you need one? Only if you answer yes to any of the questions below:
1. Do you care who gets your property if you die?
2. Do you care who gets your money if you die?
3. Do you care who is appointed guardian of your minor children if you die?
Who Needs A Will?
Wills are not just for the rich. Regardless of how much or how little money you have, a will ensures that whatever personal belongings and assets you do have will go to family or beneficiaries you designate. Without a will, the court makes these decisions.If you have children, a will is a must, to ensure that you get to choose your children’s guardian. Few people plan to die in the near future, but if you die suddenly without a will, you’ll be subjecting your family and loved ones to confusion and anxiety at what is already a difficult time.

There are other benefits to having a will, including tax benefits.

You may amend your will at any time. In fact, it’s a good idea to review it periodically and especially when your marital status changes. At the same time, review your beneficiary designations for your 401(k), IRA, pension and life insurance policy since those accounts will be transferred automatically to your named beneficiaries when you die.

A will is also useful if you have a trust.  A trust is a legal mechanism that lets you put conditions on how your assets are distributed after you die and it often lets you minimize gift and estate taxes. But you still need a will since most trusts deal only with specific assets such as life insurance or a piece of property, but not the sum total of your holdings.

Even if you have what’s known as a revocable living trust in which you can put the bulk of your assets, you still need what’s known as a pour-over will. In addition to letting you name a guardian for your children, a pour-over will ensures that all the assets you intended to put into the trust are put there even if you fail to retitle some of them before your death.

Any assets that are not re-titled in the name of the trust are considered subject to probate. As a result, if you haven’t specified in a will who should get those assets, a court may decide to distribute them to heirs whom you may not have chosen.

In addition to the will or trust, we ask our clients to fill out Durable Powers of Attorney for Financial Decisions, Health Care Directives, and other documents that are free and part of life planning.

If you have questions about whether you need a will or trust, contact Michelle M. Funkenbusch. Working with Joan M. Swartz, for complex estate planning, and tax professionals conveniently located in our building, we can provide you with full-service estate planning.  Fees range from $300.00 to $3000.00 depending on the complexity of your estate and whether you want a will or trust.

 

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.

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

Top Ten Things to Do When You Are Hit By a Car on Your Bicycle

Top Ten Things to Do After a Bicycle Accident from St. Louis Bicycle Accident Attorney 

Cyclists are injured and killed by hit-and-run drivers every day. Today, a cyclist was killed while trying to cross the street after exiting a well known bike path in Fullerton, California. Police are searching for a black vehicle involved in a hit-and-run accident that left the bicyclist dead.  Police said the man that was hit appeared to have come off a popular biking trail and was crossing the street.  The vehicle fled the scene, and then the victim was hit by a second vehicle, which stopped.  The bicyclist was rushed to a local hospital, where he was pronounced dead shortly after.

Here is a checklist to follow if you are hit while riding your bicycle and are still able to function. If you were not able to function at the time of the accident, or your loved one was killed, it is imperative you or your family contact an experienced bicycle accident attorney immediately. Make sure your family knows who you want them to call in an emergency.  If you are a witness to an accident, please help the victim with the following top ten things to do after a cycling accident:

CHECKLIST FOR BIKE ACCIDENTS

1.  Get out of the road to avoid being hit a second time; however, if possible, take pictures (or have someone else take pictures) before the bike or car are moved.

2.  Get the phone numbers and names of all witnesses.

3.  Make sure to remember what if anything the driver, passengers, and or witnesses admit or tell you about the accident.

4.  Call the police immediately and make a police report.  Do not let the driver talk you out of making a report.

5.  Do not ignore your pain and blow it off. People are often hurt way worse than what they thought at the time of the accident due to adrenaline.  Go to an ER or doctor immediately if you have any pain. If you do not document that you are injured in medical records, you have no case for personal injuries.

6.  Ask to see the driver’s license and insurance information. Do not just let them write it down for you. Get the phone numbers to make a claim. Check the policy dates on the card to verify you have the correct insurance card. 

7.  Seek an estimate of your bike damage for repair and replacement value from a reputable shop like Maplewood Bicycle. http://www.maplewoodbicycle.com/.  Do NOT try to fix it on your own without first getting the estimate.

8. Do not destroy anything that could be evidence such as a cracked helmut, torn clothing, bloody shoes, etc.

9.  Do NOT give a recorded statement to the insurance company. They are NOT on your side and will try to trick you into saying something to use against you in court.  

10.  Call a bicycle accident attorney within 24 hours in order to preserve all evidence, to contact witnesses, to make sure the police have the correct story (in case a supplemental report is needed with your statement), and to let the insurance company for the driver know you are represented and cannot be bullied into a settlement that greatly undervalues your case.

Again, if you or your loved one are hit while cycling, contact Missouri Cycling Advocate and Bicycle Accident Attorney, Michelle M. Funkenbusch at 314-338-3500.   If you would like a FREE hour presentation to your community group, athletic club, or children’s organization, on Missouri bicycle law and safety measures, please contact Michelle.

Summary of U.S. Report on Commuting by Bike and on Foot by Missouri Bicycle Accident Lawyer

The Status of Bicycling and Walking in the U.S.

Government officials working to promote bicycling and walking need data to evaluate their efforts. In order to improve something, there must be a means to measure it. The Alliance for Biking & Walking’s Benchmarking Project is an ongoing effort to collect and analyze data on bicycling and walking in all 50 states and the 51 largest cities. They have now prepared the third biennial Benchmarking Report which is 248 pages long. The first report was published in 2007, the second in 2010, and the next report is scheduled for January 2014.

WHERE ARE THE MOST NON-VEHICLE COMMUTERS?

According to the report, the top ten cities where the most people commute by bike or on foot are: 1. Alaska 2. Vermont 3. New York 4. Montana 5. Oregon 6. Hawaii 7. Massachusetts 8. South Dakota 9. Wyoming 10. Maine.  The number one position, Alaska,  indicates it is the state with the highest share of commuters who commute by bicycle or foot.  The cities who ranked highest in commuting by bike and on foot are: 1. Boston  2. Washington, DC 3. San Francisco 4. Seattle 5. New York 6. Portland, OR  7. Minneapolis 8. Philadelphia 9. Honolulu 10. New Orleans.

Missouri ranked 40th out of the 50 states in the levels of commuting by bike or on foot. 

This information comes from the 2007-2009 ACS Notes: This ranking is based on the combined bike and walk to work share from the 2007-2009 ACS. View graphs illustrating this data on pages 34 and 35 of the Benchmark Report.

WHICH IS THE SAFEST STATE FOR A COMMUTER BY BIKE OR ON FOOT?

This is difficult to determine, but one statistic to consider is the number of fatalities per population commuting by walking or biking to work.  The arguably safest state based on fatality statistics is Vermont. The top safest states rank as follows: 1. Vermont 2. Nebraska 3. Alaska 4. Wyoming 5. South Dakota 6. North Dakota 7. Iowa 8. Maine 9. Massachusetts 10. Minnesota. See FARS 2007-2009 ACS 2007-2009.  Note that this ranking is based on the fatality rate which is calculated by dividing the number of annual pedestrian and bicycle fatalities (averaged between 2007-2009) by population (weighted, or multiplied, by share of the population walking and bicycling to work). View these data on pages 56-62 of this report.

Illinois ranked in the top half  of lowest fatalities/population commuting by bike/foot at 23rd,

but Missouri was in the 34th position.

The top twelve cities who ranked the safest based on the fatality statistics  are as follows: 1. Boston 2. Minneapolis 3. Omaha 4. Seattle 5. Portland, OR 6. Washington, DC 7. New York 8, San Francisco 9. Philadelphia 10. Honolulu 11. Colorado Springs 12. Chicago. Kansas City, MO ranked 45th and St. Louis did not make the list because this report focuses on the 50 states and the 51 largest U.S. cities. Most bicycling and walking is in urban areas, and because of short trip distances, the most potential for increasing bicycling and walking is in cities.

Summary of Additional Facts From the Report

Bicycling and Walking Levels:

  • 12% of all trips are by bicycle (1.0%) or foot (10.5%).
  • From 2000 to 2009, the number of commuters who bicycle to work increased by 57%.
  • In 2009, 40% of trips in the United States were shorter than 2 miles, yet Americans use their cars for 87% of trips 1 to 2 miles. Twenty-seven percent of trips are shorter than 1 mile, yet 62% of trips up to 1 mile long are by car. Residents of the largest U.S. cities are 1.7 times more likely to walk or bicycle to work than the national average.

Bicycle and Pedestrian Safety:

  • 14% of all traffic fatalities in the U.S. are bicyclists (1.8%) or pedestrians (11.7%).
  • In the 51 largest U.S. cities, 12.7% of trips are by foot and 1.1% are by bicycle, yet 26.9% of traffic fatalities are pedestrians and 3.1% are bicyclists
  • Seniors are the most vulnerable bicyclists and pedestrians. Adults over 65 make up 10% of walking trips, yet comprise 19% of pedestrian fatalities and make up 6% of bicycling trips, yet account for and 10% of bicyclist fatalities.

Funding for Bicycling and Walking:

 • States spend just 1.6% of their federal transportation dollars on bicycling and walking. This amounts to just $2.17 per capita.

Missouri was ranked 17th out of the 50 states in funding bicycling and walking.

This ranking is based on the per capita spending of federal funds by states and cities on bicycling and walking using a 5-year average (2006-2010). Data is based on funds obligated to projects in this period and are not necessarily the amount spent in these years. The number one position, again Alaska, indicates the state with the highest amount of per capita federal funding to bicycling and walking.  View these data on pages 86-87 of this report.

Here are some additional facts about financial benefits from the extensive report:

Public Health Benefits:

• Bicycling and walking levels fell 66% between 1960 and 2009, while obesity levels increased by 156%.

• Between 1966 and 2009, the number of children who bicycled or walked to school fell 75%, while the percentage of obese children rose 276%.

• In general, states with the highest levels of bicycling and walking have the lowest levels of obesity, hypertension (high blood pressure), and diabetes and have the greatest percentage of adults who meet the recommended 30-plus minutes per day of physical activity.

Economic Benefits:

 • Bicycling and walking projects create 11-14 jobs per $1 million spent, compared to just 7 jobs created per $1 million spent on highway projects.

 • Cost benefit analyses show that up to $11.80 in benefits can be gained for every $1 invested in bicycling and walking.

Download the complete report at: www.PeoplePoweredMovement.org/Benchmarking

Michelle M. Funkenbusch is a cycling advocate and Missouri trial attorney specializing in representing cyclists who have been injured in accidents. Please contact her if you wish for her to speak with your group about the benefits of cycling or if you have been injured in an accident. 314-799-6602. mmf@SaintLouisLegal.com