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Case 3:16-cv-02579-B Document 11 Filed 12/14/16

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IN THE UNITED STATE DISTRICT COURT


NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
AVIS S. ADELMAN
Plaintiff,

v.

DALLAS AREA RAPID TRANSIT,

and STEPHANIE BRANCH, individually


and in her official capacity as a Dallas

Area Rapid Transit Police Officer

Defendants.

Civil Action No. 3:16-cv-2579

JOINT STATUS REPORT


TO THE HONORABLE U.S. DISTRICT COURT:
On December 2, 2016, counsel for Plaintiff and counsel for Defendants met
face-to-face at DART for approximately 30 minutes to discuss this case and the
issues addressed in the courts order (D.E. 10) dated November 21, 2016. The
parties submit this Joint Rule 26(f) Status Report:
1.

FRCP 26(f)(2) Statements:


A.

Plaintiffs Contentions:

Plaintiff Avi S. Adelman contends that DART and Officer Branch violated
his fundamental constitutional rights to freedom of speech, freedom of the press,
and freedom from unlawful arrest. Defendants violation of these rights occurred
on February 9, 2016, when Officer Branch arrested Adelman without probable

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cause and jailed him overnight, all because Adelman was exercising his First
Amendment right to take photographs in public.
Officer Branchwith the blessing of her supervisor, DART Police Sergeant
T. Hutchinsused a trumped-up charge of criminal trespass to justify her unlawful
arrest of Adelman. Officer Branch also justified the arrest by falsely stating that
Adelman was interfering with Dallas Fire/Rescue (DFR) paramedics and that those
paramedics had asked Officer Branch to move Adelman from the scene.
DART supported Officer Branchs false account, with its spokesman,
Morgan Lyons, stating less than 24 hours after the arrest that DART had reviewed
the exchange and believes the officers acted appropriately. According to Lyons,
Dallas Fire-Rescue asked [Adelman] to move. He refused. Paramedics asked us
to ask him to move several times. He failed to comply and thats why he was
arrested. The evidence paints a starkly different picture from the one painted by
Lyons and DART. In fact, just a few days after Lyons issued his statement, DFR
spokesman Jason Evans disputed DARTs account: At no point were any requests
made to ask Mr. Adelman to leave the scene and/or stop taking pictures. In
addition, there were no requests made to [DART] officers to ask him to leave the
scene and/or stop taking pictures.
Faced with these inconsistenciesand the overwhelming evidence
demonstrating that the arrest and imprisonment were clear constitutional
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violationsDART dropped the criminal trespass charge against Adelman on


February 16, 2016.

Shortly after that, DART initiated an Internal Affairs

investigation into Adelmans arrest.

The investigation revealed that Officer

Branch committed numerous violations of law and disregarded Adelmans


constitutional rights. Specifically, DART concluded that Officer Branch did not
establish Probable Cause to effect the arrest and improperly arrested Adelman
while he was simply taking photographs of a person in a public place where he
had a legal right to be present.
DART also concluded that Officer Branch made numerous false statements
in her incident report, including her statement that DFR instructed her to keep
Adelman back because he was too close to the scene. According to DART, [t]his
statement has been denied by DFR personnel and by Officers Craig and Cannon.
This statement is not heard or viewed on any video or audio recordings taken from
the scene.

All told, DART concluded that Officer Branchs incident report

contained 23 statements that were not accurate.


Although DARTs after-the-fact investigation found that Officer Branch
violated the law and DART policy, the unconstitutional use of criminal trespass
warnings and charges is supported by DART policy. Specifically, DART policy
permits its police officers to issue criminal trespass warnings if a person is on
DARTs property for purposes other than to utilize public transportation services.
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Officer Branch arrested Adelman pursuant to this policy, and with express
approval from Sergeant H. Hutchins and Sergeant T. Hutchins to use a trumped-up
charge for criminal trespass as a means to prevent Adelman from exercising his
First Amendment right to photograph.

In fact, DARTs spokesman, Morgan

Lyons, commented that Adelmans arrest was proper. Additionally, DART has
failed to train its officers regarding the First Amendment right to photograph and
has failed to supervise and discipline its officers who violate that First Amendment
right.
Despite finding that one of its officers violated Adelmans constitutional
rights and made 23 false statements, DART barely disciplined Officer Branch. In
fact, while a senior DART Internal Affairs Officer recommended that Officer
Branch be terminated, DART Police Chief James Spiller made an executive
decision to suspend Officer Branch for just three days in the face of these major
rights violations and false statements by one of its officers. DART also has refused
even to apologize to Adelman after violating his constitutional rights, berating and
humiliating him, and forcing him to spend nearly 24 hours in jail for nothing more
than taking photographs in a public space. Additionally, DART has not made any
policy changes and continues to enforce policies that are likely to result in future
constitutional violations.

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As a result, Adelman filed this lawsuit against DART and Officer Branch,
alleging violations of his First, Fourth, and Fourteenth Amendment rights pursuant
to 42 U.S.C. 1983.

Adelman seeks actual damages, exemplary damages,

attorneys fees, and a permanent injunction requiring DART to change its


unconstitutional policies and refrain from further unconstitutional arrests and
harassment of individuals exercising their First Amendment rights.
B.

Defendant DARTs Contentions:

On February 9, 2016 at around 8:20 pm, DART police and Dallas Fire and
Rescue (DFR) were responding to a young male passed out at or near the Rosa
Parks Plaza. DART Police Officer Stephanie Branch (Branch) was at the scene
and noticed Plaintiff Avi Adelman nearby taking pictures and asked him to step
back and give DFR room to attend to the person that was passed out. A discussion
ensued between Officer Branch and the Plaintiff as to what rights the Plaintiff had
to be at this location and take photos. Officer Branch believed she had probable
cause to arrest the Plaintiff for criminal trespass, the Plaintiff was arrested for
criminal trespass and was transported to the Dallas County jail.
As the Plaintiffs criminal trespass arrest was being reviewed by the case
filing manager and/or the DART police chain of command, it was decided that the
Plaintiffs arrest was not consistent with DART police policies and directives and
although Officer Branchs actions may have been within her discretion, they were
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not in line with the DART Police Departments directives concerning photography
on DART property. On February 16, 2016, the DART Chief of Police dismissed
the criminal trespass charge that had been filed against the Plaintiff.
DART contends that an Internal Affairs investigation was completed on the
actions Officer Branch took on February 9, 2016 involving the Plaintiff and
disciplinary action of a 3-day suspension and retraining was issued for the
sustained findings of the internal affairs investigation.
DART has a photograph policy that allows persons to take photographic or
video images of DART property therefore Plaintiff cannot establish the existence
of an officially adopted policy or an established custom of DART or DART police
that caused any physical injury to the Plaintiff and a causal connection between the
policy or custom and the deprivation of any constitutional right.
DART contends Officer Branch has met the minimum Texas peace officer
training requirements mandated by the Texas Commission on Law Enforcement
(TCOLE) and therefore the Plaintiff cannot establish any claim related to lack of
training.
DART contends Officer Branch was on duty and in the course and scope of
her employment as a peace officer with DART when this incident occurred and
had arguable probable cause or made a reasonable mistake of fact in believing

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probable cause existed to arrest the Plaintiff and therefore Officer Branch is
entitled to Qualified Immunity.
DART contends that the actions of Officer Branch were investigated and
reasonable, good faith efforts were made to dismiss the criminal trespass charges
against the Plaintiff.
C.

Stephanie Branchs Contentions:

On February 9, 2016 at around 8:20 pm, DART police and Dallas Fire and
Rescue (DFR) were responding to a young male passed out at or near the Rosa
Parks Plaza. DART Police Officer Stephanie Branch (Branch) was at the scene
and noticed Plaintiff Avi Adelman nearby taking pictures and asked him to step
back and give DFR room to attend to the person that was passed out. A discussion
ensued between Officer Branch and the Plaintiff as to what rights the Plaintiff had
to be at this location and take photos. Officer Branch believed she had probable
cause to arrest the Plaintiff for criminal trespass, the Plaintiff was arrested for
criminal trespass and was transported to the Dallas County jail.
As the Plaintiffs criminal trespass arrest was being reviewed by the case
filing manager and/or the DART police chain of command, it was decided that the
Plaintiffs arrest was not consistent with DART police policies and directives and
although Officer Branchs actions may have been within her discretion, they were
not in line with the DART Police Departments directives concerning photography
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on DART property. On February 16, 2016, the DART Chief of Police dismissed
the criminal trespass charge that had been filed against the Plaintiff.
DART has a photograph policy that allows persons to take photographic or
video images of DART property therefore Plaintiff cannot establish the existence
of an officially adopted policy or an established custom of DART or DART police
that caused any physical injury to the Plaintiff and a causal connection between the
policy or custom and the deprivation of any constitutional right.
Officer Branch contends that she has met the minimum Texas peace officer
training requirements mandated by the Texas Commission on Law Enforcement
(TCOLE) and therefore the Plaintiff cannot establish any claim related to lack of
training.
Officer Branch contends that she was on duty and in the course and scope of
her employment as a peace officer with DART when this incident occurred and
had arguable probable cause or made a reasonable mistake of fact in believing
probable cause existed to arrest the Plaintiff and therefore Officer Branch is
entitled to Qualified Immunity.
2.

Jurisdiction/Venue Challenges:

There are no challenges to jurisdiction or venue.

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3.

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Any pending or contemplated motions and proposed time limits

for filing motions:


There are no pending motions. The parties anticipate dispositive motions
being filed and request a deadline for same not sooner than the end of discovery.
4.

Any matters which require a conference with the court:

None.
5.

Joinder of Additional Parties:

None anticipated at this time.


6.

a. Time needed for discovery: The parties anticipate Initial

Disclosures to be served on or before December 21, 2016. The parties do not


request any changes from the Rules. Plaintiff believes discovery can be completed
within 5 months or by April 28, 2017.

Defendants believe discovery can be

completed within 12 months or by December 1, 2017.


b. Specification of the subjects on discovery: After Initial
Disclosures, the parties anticipate written discovery, Deposition on Written
Questions to non-parties for records, depositions of the parties and fact witnesses,
such as the Plaintiff, Officer Branch, Officers at the scene, Internal Affairs Officer
Roy Wilt and DART Police command staff. Document discovery will include the
Internal Affairs report; Officer Branchs training records; DART police general
orders and sections of DARTs Administrative Employment Manual; documents
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relating to DARTs customs, policies, procedures, and police training


requirements; and DARTs communications relating to the incident
c. Whether discovery should be conducted in phases or limited:
DART believes discovery should be focused on the matters identified in section b.
Plaintiff generally agrees but does not believe it is necessary or appropriate for the
Court to enter any order limiting or phasing discovery.
7.

Issues related to disclosure or discovery of electronically stored

information:
Electronic documents will be produced in PDF format, unless otherwise
requested by the parties.
8.

Issues related to claims of privilege or of protection as trial-

preparation material:
None.
9.

Changes if any to the limitations on discovery:

None.
10.

Other orders by the Court under Rule 26(c) or Rule 16(b) and (c):

None.

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11.

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Proposed deadlines:

The parties agreed on deadlines to join parties, amend pleadings, designate


experts, and file expert objections,1 but the parties were unable to agree on the
remaining proposed deadlines, despite their good faith attempts to compromise.
Plaintiff believes that a trial setting of September 5, 2017, approximately one year
from the filing of his Complaint is sufficient time to complete discovery and
pretrial filings, given the size and complexity of the case and the fact that the
majority of documents at issue have already been exchanged pursuant to the Texas
Public Information Act. Defendants propose a May 28, 2018 trial setting because
of written discovery; 3-4 fact witness depositions; 1-2 expert witness depositions
and counsels litigation schedule.
The parties respective proposals, based on their requested trial settings, are
set forth below:
Deadline
Deadline for Motions for Leave to Join
Parties or Amend Pleadings
Deadline for Dispositive Motions
Deadline for Expert Objections and Other
Motions
Deadline for Completion of Discovery
Affirmative Expert Designation & Report
Rebuttal Expert Designation & Report

Plaintiffs Proposal
January 31, 2017

Defendants Proposal
Same

May 15, 2017


June 15, 2017

January 26, 2018


Same

April 28, 2017


March 8, 2017
30 days after
disclosure made by
other party

December 1, 2017
Same
April 10, 2017 or 30
days after the other
partys disclosure

Plaintiffs proposal for these deadlines is based on a requested trial date of September 5, 2017.
If the Court sets a later trial date, Plaintiff requests proportionally later deadlines for amending
the pleadings, designating experts, and objecting to experts.
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12. Trial Date:


For the reasons set forth above, Plaintiff proposes September 5, 2017 as a
jury trial date. For the reasons set forth above, Defendants propose May 28, 2018
as a jury trial date. The parties estimate 3 days for trial. Plaintiff made a jury
demand in his Complaint.
13. Consent to trial before US Magistrate Judge:
The parties do not consent to trial before a US Magistrate Judge.
14. Settlement negotiations:
Prior to the filing of this lawsuit, Plaintiffs counsel and DARTs counsel
met face-to-face to discuss settlement.

Additionally, Plaintiff sent a written

settlement offer to DART, supported by a 7-page written analysis of Plaintiffs


claims and requested settlement and nearly 70 pages of exhibits. DART verbally
rejected Plaintiffs written offer as being too far from any amount DART could
consider at that time. Plaintiff has not directly discussed settlement with Branch
because it is Plaintiffs understanding that any settlement payment for the
Defendants would come from (and be authorized by) DART. Plaintiff offered to
continue settlement discussions during the status conference, but counsel decided
that further settlement discussions would be more beneficial after the parties have
had the opportunity to conduct discovery and further evaluate this case.

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15. Alternative dispute resolution:


All counsel believe mediation will be beneficial and propose a mediation
deadline of on or before May 15, 2017. The parties anticipate that they will be
able to agree upon a mediator and are not requesting that the Court appoint a
mediator.
16. Any other matters relevant to this case:
None.

Respectfully submitted,
s/ Tyler J. Bexley
Tyler J. Bexley
State Bar No. 24073923
REESE GORDON MARKETOS LLP
750 N. Saint Paul St., Suite 610
Dallas, Texas 75201-3202
214.382.9810 telephone
214.501.0731 facsimile
tyler.bexley@rgmfirm.com
ATTORNEY FOR PLAINTIFF

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s/ Jane E. Bishkin
Jane E. Bishkin
SBN: 00783663
Law Office of Jane E. Bishkin
10000 N. Central Expressway, Suite 400
Dallas, TX 75231
(214) 584-9020 Office
(214) 584-9021
jbish@swbell.net
Attorney for Stephanie Branch

s/ Higinio Gamez
Higinio Gene Gamez
Senior Assistant General Counsel
SBN: 90001969
LEGAL DEPARTMENT
DALLAS AREA RAPID TRANSIT
P. O. Box 660163
Dallas, Texas 75266-7255
(214) 749-3196 Fax (214) 749-0281
ggamez@dart.org
Attorney for Defendant DART
CERTIFICATE OF SERVICE
The undersigned certifies that on December 14, 2016, the foregoing
document was submitted to the clerk of the U.S. District Court, Northern District
of Texas, using the electronic case filing system (CM/ECF) of the court. I certify
that the document was served on all known counsel of record electronically as
authorized by Federal Rule of Civil Procedure 5(b)(2).
s/ Tyler J. Bexley

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