            IN THE MISSOURI COURT OF APPEALS
                    WESTERN DISTRICT
 STATE OF MISSOURI, ex rel.   )
 CITY OF KANSAS CITY,         )
 MISSOURI,                    )
                       Relator,
                              )
 v.                           )                WD82290
                              )
 THE HONORABLE KEVIN D.       )                FILED: February 5, 2019
 HARRELL, JUDGE FOR THE       )
 16TH JUDICIAL CIRCUIT OF     )
 MISSOURI,                    )
                  Respondent. )
           Original Proceeding on Petition for Writ of Prohibition
           Before Writ Division: Alok Ahuja, P.J., and Gary D. Witt
                        and Thomas N. Chapman, JJ.
      The City of Kansas City filed an original petition for a writ of prohibition in

this Court, seeking dismissal of a civil suit filed against it in the Circuit Court of

Jackson County. In the underlying suit, plaintiff Clay Chastain contends that the

City defamed him by placing him on a “watch list” at City Hall, which subjected him
to enhanced security screening when he entered the building, and required that he

be escorted by armed security personnel inside the building. The City argues that it

is entitled to sovereign immunity against Chastain’s defamation claim. We agree.

We previously issued a preliminary writ of prohibition, which we now make

permanent.

                                Factual Background
      For purposes of the City’s motion to dismiss, we assume that the facts alleged
in Chastain’s Amended Petition are true, and we give him the benefit of all
reasonable inferences arising from those facts. Jackson v. Barton, 548 S.W.3d 263,

267 (Mo. banc 2018).

       Chastain is a long-time community activist in Kansas City. He filed the

underlying suit in the Circuit Court of Jackson County on March 2, 2018. Case No.

1816-CV05605.1

       In his Amended Petition, Chastain alleges that the City placed him on a

“watch list” at City Hall, which resulted in him being delayed and subjected to

enhanced security screening upon entering City Hall, and required that he be

escorted throughout City Hall by armed security guards. When Chastain initially

protested being on the “watch list,” he was told that the City considered him

“possibly dangerous.”

       The Amended Petition alleges that, on June 11, 2017,2 Chastain’s placement

on the “watch list” became widely publicized. On that date, a news reporter

observed and filmed Chastain’s interactions with security personnel when he

entered City Hall, and Chastain being escorted by two armed security guards to the

City Clerk’s office to deliver an initiative petition. Chastain “became visibly upset

and protested more vigorously than he had in the past.” The reporter interviewed

Chastain about his interaction with security personnel. According to the Amended
Petition, an unnamed City employee verified to the reporter that Chastain had been

placed on a “watch list” because the City deemed him to be dangerous. A story

about the incident was broadcast or published by multiple news outlets.




       1       Chastain made similar claims in an earlier case that was dismissed without
prejudice for failure to prosecute. Chastain v. City of Kansas City, Missouri, Case No. 1716-
CV11374.
       2       In the Brief he filed on behalf of Respondent, Chastain states that this
incident occurred on June 11, 2016. Consistent with our standard of review, we rely on the
date alleged in Chastain’s Amended Petition.


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       On June 14, 2017, Chastain returned to City Hall to pick up his copies of the

initiative petition, and was once again subjected to enhanced and intrusive security

screening. Chastain protested to the head of security and the City’s legal

department about being on the “watch list,” and threatened to sue the City if his

name was not promptly removed. Chastain’s name was removed from the “watch

list” later that day.

       The Amended Petition alleges that the City acted with malice in falsely

accusing Chastain of being dangerous, and that the City placed him on the “watch

list” as retribution for his political activities. The Amended Petition alleges that the

City’s actions caused Chastain emotional harm, and had the effect of “smear[ing],

malign[ing] and defam[ing] Chastain’s public reputation” and his reputation with

City personnel. Chastain prays that the court award him $1 million in

compensatory damages, and $2 million in punitive damages.

       The Amended Petition asserts that the City is not entitled to sovereign

immunity against Chastain’s defamation claim because the City “controls and

directs its security force,” and the City, “acting through its security force on behalf

of its citizens, is performing a proprietary function.”

       The City moved to dismiss Chastain’s Amended Petition on sovereign
immunity grounds. The City’s motion argued, first, that running City Hall is a

governmental function entitled to sovereign immunity. In the alternative, the City

argued that, even if the operation of City Hall is deemed to be a proprietary

function, the act of providing security to City Hall is a governmental function for

which the City is immune from suit.

       After the circuit court denied the City’s motion to dismiss, the City filed its

writ petition in this Court.




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                                       Discussion
       “Prohibition is a discretionary writ that only issues to prevent an abuse of

judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of

extrajurisdictional power.” State ex rel. Church & Dwight Co., Inc. v. Collins, 543

S.W.3d 22, 26 (Mo. banc 2018) (citation and quotation marks omitted).

       If the City is immune from Chastain’s suit, prohibition is an appropriate

remedy. The Missouri Supreme Court has “repeatedly held that prohibition may be

appropriate to prevent unnecessary, inconvenient, and expensive litigation.” State

ex rel. Henley v. Bickel, 285 S.W.3d 327, 331 (Mo. banc 2009) (citations and

quotation marks omitted). “If a party cannot state facts sufficient to justify court

action or relief, it is fundamentally unjust to force another to suffer the considerable

expense and inconvenience of litigation. It is also a waste of judicial resources and

taxpayer money.” Id. In particular, “where it appears on the face of the pleadings

that the defendant is immune from suit as a matter of law, prohibition is an

appropriate remedy.” McCoy v. Martinez, 480 S.W.3d 420, 423–24 (Mo. App. E.D.

2016) (citing State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 444 (Mo. banc 1986));

see also, e.g., State ex rel. City of Grandview v. Grate, 490 S.W.3d 368, 369 (Mo. banc

2016) (“Sovereign immunity is not a defense to suit but, rather, it is immunity from

tort liability altogether, providing a basis for prohibition.”).

       Where it is applicable, the doctrine of sovereign immunity prevents a public

entity from being sued without its consent. Metro. St. Louis Sewer Dist. v. City of

Bellefontaine Neighbors, 476 S.W.3d 913, 921 (Mo. banc 2016). Although Chastain’s

Amended Petition alleges that the City committed the intentional tort of

defamation, “sovereign immunity shields municipalities from liability even from

intentional torts.” Bennartz v. City of Columbia, 300 S.W.3d 251, 261 (Mo. App.




                                             4
W.D. 2009) (citing Aiello v. St. Louis Community College Dist., 830 S.W.2d 556, 558

(Mo. App. E.D. 1992)).3

       Sovereign immunity is not an affirmative defense; instead, when suing a

public entity, the burden is on the plaintiff to plead facts with specificity that give

rise to an exception to sovereign immunity. Richardson v. City of St. Louis, 293

S.W.3d 133, 137 (Mo. App. E.D. 2009) (citations omitted). “Accordingly, to state a

cause of action sufficient to survive a motion to dismiss on the pleadings, the

petition, when viewed in its most favorable light, must plead facts, which if taken as

true, establish an exception to the rule of sovereign immunity.” Phelps v. City of

Kansas City, 371 S.W.3d 909, 913 (Mo. App. W.D. 2012) (citation and quotation

marks omitted).

       Sovereign immunity does not apply to all of the activities of a municipal

entity; instead, a court must determine whether the function the city was

performing in a particular case was “governmental” or “proprietary.”

               Under the common law, a municipality is not entitled to full
       sovereign immunity. Because municipalities operate as both political
       subdivisions of the state and independent corporations, they perform
       both governmental and non-governmental functions. And because
       sovereign immunity protects the state, as a sovereign, municipalities
       are cloaked with immunity only when acting as an arm of the state.
       Thus, unlike state entities which receive full sovereign immunity,
       municipalities are entitled to sovereign immunity only when engaged
       in governmental functions, but not proprietary functions. The
       distinction between the governmental and proprietary functions of
       municipalities was drawn by the courts in order to impose common law
       liability on municipal corporations for the negligence of their agents,
       servants or officers in the execution of corporate powers and duties.




       3      See also, e.g., Mitchell v. Village of Edmundson, 891 S.W.2d 848, 850 (Mo.
App. E.D. 1995); Balderree v. Beeman, 837 S.W.2d 309, 317 (Mo. App. S.D. 1992) (applying
sovereign immunity to a claim of slander against a regional planning commission),
overruled on other grounds by Amick v. Pattonville-Bridgeton Terr. Fire Protection Dist., 91
S.W.3d 603, 605 (Mo. banc 2002).


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Crouch v. City of Kansas City, 444 S.W.3d 517, 521–22 (Mo. App. W.D. 2014)

(citations and internal quotation marks omitted); accord, City of Grandview, 490

S.W.3d at 371.

      We have recognized that “[t]he distinction between governmental functions

and proprietary ones is often obscure . . . .” Bennartz, 300 S.W.3d at 259 (citing

Gregg v. City of Kansas City, 272 S.W.3d 353, 361 (Mo. App. W.D. 2008). As a

general matter, “governmental functions are those performed by the municipality as

an agent of the state, meaning that they are for the benefit of the general public, or

‘the common good of all.’” Crouch, 444 S.W.3d at 523 (citations and quotation

marks omitted). “Keeping the peace, enforcing laws and ordinances, and preserving

the public health are just some of the duties within the province of a municipality as

a governmental agency and upon which the municipality acts without liability.”

Gregg, 272 S.W.3d at 361 (citations and internal quotation marks omitted). On the

other hand, proprietary functions are those functions “performed for the special

benefit or profit of the municipality acting as a corporate entity.” Junior College

Dist. of St. Louis v. City of St. Louis, 149 S.W.3d 442, 447 (Mo. banc 2004) (citation

and quotation marks omitted). “These functions often involve the provision of

services or conveniences to a municipality’s own citizens.” Bennartz, 300 S.W.3d at
259 (citation omitted). For example, a municipality’s sale and distribution of water

to customers for private use and a municipality’s maintenance of a park have been

found to be proprietary functions. Gregg, 272 S.W.3d at 360.

        In his Amended Petition, Chastain argues that the City was performing a

proprietary function, not a governmental function, when it placed his name on the

“watch list” at City Hall, and when its security personnel subjected him to enhanced

screening, and required that he be escorted inside City Hall. In making this

argument, Chastain focuses on the specific conduct underlying his defamation
claim: the City’s allegedly malicious, and unjustified, action of branding him as


                                           6
“dangerous,” and subjecting him to humiliating and harassing security measures, as

retribution for his community activism and political activities. Chastain argues

that the City’s vindictive actions towards him were not performed for “‘the common

good of all.’” Crouch, 444 S.W.3d at 523.

      Chastain’s focus is too narrow. “In deciding whether a particular function is

governmental or proprietary, a court must look to the nature of the activity

performed, not the nature of the tort.” Crouch, 444 S.W.3d at 523 (citations and

internal quotation marks omitted). “[T]he particular defendant’s conduct and the

motives behind it are less important than the generic nature of the activity.” A.F. v.

Hazelwood School Dist., 491 S.W.3d 628, 634 (Mo. App. E.D. 2016) (citation

omitted); see also Crouch, 444 S.W.3d at 523. “The status of a function of a city does

not vary from day to day with the whims of the particular people elected or

appointed to municipal offices.” State ex rel. Bd. of Trustees v. Russell, 843 S.W.2d

353, 359 (Mo. banc 1992).

      Therefore, rather than focusing on the City’s purportedly malicious and

defamatory actions against Chastain, we look to “the generic nature of the activity”

it was performing at the time of the alleged tort. The actions of which Chastain

complains—identifying persons who may pose a security risk, and subjecting those
persons to heightened screening and surveillance—are part of the security function

at City Hall. Whether or not the overall operation of City Hall is a governmental or

proprietary function,4 the City’s provision of security services at City Hall is plainly

a governmental function, for which the City is entitled to sovereign immunity. We

addressed a similar question in Gregg v. City of Kansas City, 272 S.W.3d 353 (Mo.

App. W.D. 2008). In Gregg, a woman was shot and killed by an individual who was


       4      See generally Weiser v. Kansas City, 481 S.W.2d 568, 570–71 (Mo. App. 1972)
(discussing whether the operation of the City Hall of Kansas City constituted a
governmental or proprietary function for sovereign immunity purposes).


                                            7
employed as a security officer at Kansas City International Airport. The woman’s

survivors sued the City of Kansas City, alleging that it had negligently hired and

retained the security officer, and had negligently entrusted him with the handgun

he used in the shooting. 272 S.W.3d at 356. The family members alleged that the

City was performing a proprietary function “in operating an airport, hiring trained

security guards, providing the guards with weapons, and allowing the guards to

carry the weapons off airport premises without restriction.” Id. at 360.

      This Court held that, even if operation of the airport itself constituted a

proprietary function, providing security for the airport was a governmental

function, for which the City was entitled to sovereign immunity.

             While owning and operating an airport may, at least in some
      instances, be a proprietary function, airport security seems,
      notwithstanding the authorities on which Plaintiffs rely, to be
      prototypically a governmental function. It is akin to the act of policing.
      Although the operation and supervision of a police department are acts
      involving discretion of public officials, they constitute the exercise of a
      governmental function. . . . [R]egardless of the official powers and
      status of the City's security employees, when the City provides airport
      security it is engaged in a governmental activity. This is due to the
      nature of the activity itself, together with the fact that the City is a
      local governmental entity.
272 S.W.3d at 361 (citation and quotation marks omitted); see also City of
Grandview, 490 S.W.3d at 371 (“The operation of a police department is a

governmental function whereby sovereign immunity attaches to a municipality.”

(citation omitted)); Wasserman v. Kansas City, 471 S.W.2d 199, 201–02 (Mo. banc

1971) (while maintenance of public parks may be a proprietary function,

“maintain[ing] good order in the park” constitutes “a police function, a

governmental function for which [Kansas City] may not be held liable”).

      This case is controlled by our decision in Gregg. As in Gregg, the City

provides security services at City Hall for the common good of all, “as an agent of
the state.” 272 S.W.3d at 360. The security services provided at City Hall are “akin


                                          8
to the act of policing.” Id. at 361. If anything, the argument for characterizing the

City’s security services as “governmental” is stronger in this case than in Gregg,

because here, the City is providing security services to the seat of city government,

not merely to an airport. Because the City was performing a governmental function

at the time that it allegedly defamed Chastain, it is entitled to sovereign immunity.

Further, Chastain conceded in his Amended Petition that no statutory exception to

sovereign immunity applies in this case.5 The circuit court therefore erred in failing

to grant the City’s motion to dismiss.

                                       Conclusion
       The City is entitled to sovereign immunity against Chastain’s defamation

claim. We make our preliminary writ of prohibition permanent, and direct the

circuit court to take no further action in the underlying proceeding, other than to

enter an order dismissing the case with prejudice.




                                                  Alok Ahuja, Judge
All concur.




        5      Even where sovereign immunity is applicable, “[t]he General Assembly has
expressly waived sovereign immunity where a person sustains injuries either: (1) ‘directly
resulting from the negligent acts or omissions by public employees arising out of the
operation of motor vehicles or motorized vehicles within the course of their employment’ or
(2) ‘caused by [a dangerous] condition of a public entity's property.’” Crouch, 444 S.W.3d at
521 (quoting § 537.600.1(1)–(2), RSMo). In addition, “[t]he General Assembly has further
waived sovereign immunity where a public entity has purchased liability insurance, but the
waiver applies only up to ‘the maximum amount of and only for the purposes covered by
such policy of insurance.’” Id. (quoting § 537.610.1, RSMo).


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