2017 - 09 - 15 DKT 49 DART Brief SPT MSJ

Case 3:16-cv-02579-B Document 49 Filed 09/15/17 Page 1 of 51 PageID 698
IN THE UNITED STATES DISTRICT COURT

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

v. Civil Action No. 3:16-cv-2579

DALLAS AREA RAPID TRANSIT,
and STEPHANIE BRANCH, individually
and in her official capacity as a Dallas
Area Rapid Transit Police Officer
Defendants.
________________________________________________________
DEFENDANT DALLAS AREA RAPID TRANSITS BRIEF
IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT
________________________________________________________
Respectfully submitted,
By: s/Higinio Gamez

Higinio Gene Gamez
SBN: 90001969
Sr. Assistant General Counsel
LEGAL DEPARTMENT
DALLAS AREA RAPID TRANSIT
P. O. Box 660163
Dallas, Texas 75266-7255
Tel: (214) 749- 3196
Fax (214) 749-0281
E-mail: ggamez@dart.org
Attorney for DART
TABLE OF CONTENTS
PAGE
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
I. Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Causes of Action Against DART . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
III. Summary Judgment Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
IV. Summary Judgment Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
V. Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
FEDERAL CLAIMS
First Amendment Claims Against DART . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A. Adelmans First Amendment claims under Title 42 U.S.C. 1983 . . . . . . 12
B. Qualified Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
C. Official Capacity Claims Against Branch . . . . . . . . . . . . . . . . . . . . . . . . . 15
D. The Right to Photograph Emergency Medical Activity was not Clearly

Established in 2016. . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . 15
1. On February 16, 2017, the Fifth Circuit held in Turner v. Lt. Driver
that the right to film or record the police was not clearly established. 16
2. The DART Police Photography Policy is not the Equivalent of a

Statutory or Constitutional Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Fourth Amendment Claims Against DART . . . . . . . . . . . . . . . . . . . . . . . . . 19

A. Adelmans Fourth Amendment claim under 42 U.S.C. 1983. . . . . . . . . . . 19
B. Branch had sufficient probable cause to arrest Adelman for criminal

trespass. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
C. No excessive force was used against Adelman. . . . . . . . . . . . . . . . . . . . . . . 28
No DART Policy or Policymaker was the Moving Force Behind any

Violation of a Constitutional Right Alleged by Adelman. . . . . . . . . . . . . . . 29
DART did not Fail to Train, Supervise or Discipline its Officers about the
First Amendment Right to Photograph in Public. . . . . . . . . . . . . . . . . . . . . 36
Punitive Damage Claims Against DART . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
The Court Should Deny Adelmans Request for Permanent Injunction. . 40
DARTS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE i

STATE LAW CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
VI. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
TABLE OF AUTHORITIES
CASES PAGE(S)
Abbott v. Equity Group, Inc.

2 F.3d 613 (5th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ACLU of Ill v. Alvarez
679 F.3d 583 (7th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Anderson v. Liberty Lobby, Inc
477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Ashcroft v. al-Kidd
131 S.Ct. 2074 (2011) . . . . . . . . . 16
Banks v. Gallagher
2010 U.S. Dist. Lexis 55308 (M.D. Pa. Mar. 18, 2010) . . . . . . . . . . . . . . . . 16
Benavides v. City of Wilson
955 F.2d 968 (5th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Bd. of Cnty. Commrs v. Brown
520 U.S. 397 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Bodzin v. City of Dallas
768 F.2d 722 (5th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 27
Brumfield v. Hollins
551 F.3d 322 (5th Cir. 2008).. . 14
Brumfield v. Jones
849 F.2d 152 (5th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Burge v. Parish of St. Tammany
187 F.3d 409 (5th Cir. 2003) . . . . . . 20
Celotex Corp. v. Catrett
477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). . . . . . . . . . . . . . . . 11, 28
City of Canton v. Harris
489 U.S. 378 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
City of Lancaster v. Chambers
883 S.W. 2d 650 (Tex. 1994) 20
Club Retro, L.L.C v. Hilton
568 F.3d 181, (5th Cir. 2009) . . . .. 20
Cobarobio v. Midland County
2017 WL 3495588 (5th Cir. Aug. 15, 2017) .. . 17-18
Connick v. Thompson
563 U.S. 51 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Cox v. Louisiana
51 F.3d 512, (5th Cir. 1995). . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Creamer v. Porter
754 F.2d 1311 (5th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Devenpeck v. Alford
543 U.S. 146, 125 S. Ct. 588 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Douglass v. United Servs. Auto Assn.
DARTS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE ii

79 F.3d 1415 (5th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Estate of Davis v. City of North Richland Hills
406 F.3d 375 (5th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Evett v. DETNTFF
330 F.3d 681 (5th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Fields v. City of Philadelphia
2017 WL 2884391 (3rd Cir. 2017) . 18
Flores v. City of Palacios
381 F.3d 391 (5th Cir. 2004) . . . . . 20, 28-29
Freeman v. Gore
483. F.3d 410 (5th Cir. 2007).... . . . . . . 14, 25
Glenn v. City of Tyler
242 F.3d 307 (5th Cir. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Glik v. Cunniffe
655 F.3d 78 (1st Cir. 2011). . . . . . . 16
Gravolet v. Tassin
2009 U.S. Dist. Lexis 45876 (E.D. La. Jun. 2, 2009) . . . . . . . . . . . . . . . . . . 16
Griffin v. State
2007 WL 4282154 (Tex. App. Dallas, Dec. 7, 2007) . . . . . . . . . . . . . . . . 22, 42
Gros v. City of Grand Prairie, Tx.
181 F.3d 613 (5th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Hale v. Fish
899 F.2d 390 (5th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Hands v. Gary
838 F.2d 1420 (5th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Harper v. Harris County
21 F.3d 597 (5th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Harlow v. Fitzgerald
457 U.S. 800, 102 S.Crt 2727 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15
Harrington v. Harris
118 F.3d 359, 365 (5th Cir. 1997). . . 13
Hathaway v. Bazany
507 F.3d 312 (5th Cir. 2007) . . . . . . . . . . . . .. 18
Holland Am. Ins. Co. v. Succession of Roy
777 F.2d 992 (5th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Howard v. State
227 S.W.3d 794, (Tex.App. Dallas 2006, pet. denied) . . . . . . . 13, 22
Hicks v. Tarrant Cnty. Sherriggs Dept.
352 Fed.Appx 876 (5th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Jett v. Dallas Indep. Sch. Dist.
491 U.S. 701 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Kelly v. Borough of Carlisle
622 F.3d 248 (3rd Cir. 2010) . . . . 16
Kentucky v. Graham
473 U.S. 159 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Kolstad v. Am. Dental Assn
527 U.S. 526, 119 S.Ct. 2118 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Leffall v. DISD
28 F.3d 521, (5th Cir. 1994) . . . . . . 13, 17
DARTS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE iii

Lemon v. Kurtzman
411 U.S. 192 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Lytle v. Bexar Cnty,
560 F.3d 404, (5th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Mace v. City of Palestine
333 F.3d 621, (5th Cir. 2009) . . . . . . 14
Maryland v. Garrison
480 U.S. 79 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Matheny v. Cnty. Of Allegheny
2020 U.S. Dist. Lexis 24189 (W.D. Pa. Mar. 16, 2010) . . . 16
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.
475 U.S. 574 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Mission Consol. ISD v. Garcia
253 S.W.3d 653 (Tex. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 43
Monell v. Dept. of Soc. Servs. of the City of New York
436 U.S. 658 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 32-33
Montgomery v. Killingsworth
2015 WL 289934 (E.D. Pa. Jan. 22, 2015) . 16
Oliver v. Scott
276 F.3d 736 (5th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ONeal v. City of San Antonio
344 Fed.Appx 885 (5th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Otwell v. State
850 S.W.2d 815 (Tex. App.- Fort Worth 1993) . . 22
Pearson v. Callahan
555 U.S. 223 (2009) . . . . . . .. . 14
Pena v. Bexar Cnty, Tx.
726 F.Supp2d 675 (W.D. Tex. Jun. 21, 2010) . . . . . . . . . . . . . . . . . . . . . . . 21, 26
Peterson v. City of Forth Worth, Tex
588 F.3d 838 (5th Cir. 2004) . . . . . . . . . 19
Pfannsteil v. City of Marion
918 F.2d 1178 (5th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Piotrowski v. City of Houston I
51 F.3d 512 (5th Cir. 1995). . . . . . . . 13
Piotrowski v. City of Houston II
237 F.3d 567 (5th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32-33, 35
Poole v. City of Shreveport
691 F.3d 624 (5th Cir. 2012) . . . . . 14
Reed v. State
762 S.W.2d 640 (Tex. App. Texarkana 1988) . . . . .. 22
Roberts v. City of Shreveport
397 F.3d 287 (5th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Ryans v. Gresham
6 F.Supp.2d 595 (E.D. Tex. Apr. 10, 1998) . . . . . . . . . . . . . . . . . . . . . . . . . 27
Sanders-Burns v. City of Plano
594 F.3d 366 (5th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Shields v. Twiss
389 F.3d 142 (5th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Skinner v. Gragg
DARTS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE iv

650 Fed.Appx. 214 (5th Cir. 2016) . . . . . . . . . . ... . 26
Smith v. City of Cumming
212 F.3d 1332 (11th Cir. 2000) . . . 15
Smith v. Davis
999 S.W. 2d 409 (Tex. App. Dallas, 1999) . . . . . . . . . . . . . . . . . . . . . . . . 20
Smith v. Wade
461 U.S. 30 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Szymecki v. Houck
353 F. Appx 852 (4th Cirt. 2009) . . . . . . . . . . . . . . 16
Tarver v. City of Edna
410 F.3d 745 (5th. Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Turner v. Lt. Driver
848 F.3d 678 (5th Cir. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-19, 36,
39, 41
United States v. Brigham
382 F.3d 500 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v. Chavez
281 F.3d 479 (5th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
United States v. Cooper
43 F.3d 140 (5th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
United States v. Diebold, Inc.
369 U.S. 654 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States v. Levine
80 F.3d 129 (5th Cir. 1996) . . . . . . . 25
Villas at Parkside v. City of Farmers Branch
701 F.Supp.2d 835 (N.D. Tex. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Williams v. Bramer
180 F.3d 699 (5th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Wells v. Bonner
45 F.3d 90 (5th Cir. 1995) . . . . ... 20
Statutes and Rules

42 U.S.C. 1983.. 9, 11-13,
15-17, 20,
28-29, 32,
33, 36-37
Fed.R.Civ.Proc. 56. . . 1, 11, 17
Health Insurance Portability and Accountability Act of 1996 . . . . . . . . . . . . . . . . . . 2-5, 8, 23,
24-26, 30,
34
Tex. Civ. Prac. & Rem. Code Ann. 101.021(West 2011)... 42
Tex. Civ. Prac. & Rem. Code Ann. 101.057(2)(West 2011) .. 43
Tex. Civ. Prac. & Rem. Code Ann. 101.106(e)(f)(West 2011).. 42
Tex. Code Crim. Proc. 2.12(22)(West 2009) . 13
Tex. Penal Code Ann. 30.05(West 2015) . . . .. 2, 7, 10, 13,
20-22, 28,
34, 41
Tex. Transp. Code Ann. 452.110 (West 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
N.D. Tex. Local Civ. R. 7.2 & 56.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
DARTS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE v

U.S. CONST. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 12,
16-19, 27,
28, 36, 39,
40
U.S. CONST. amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12, 15,
18-21, 26-
27, 40
U.S. CONST. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 12,
15, 19,
DARTS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE vi

DEFENDANT DARTS BRIEF IN SUPPORT OF
ITS MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE UNITED STATES DISTRICT COURT:
Defendant Dallas Area Rapid Transit, (DART) pursuant to FED. R. CIV. PROC. 56, N.D.
Tex. Local Civ. R. 7.2 and 56.5 and this Courts order dated December 15, 2016, submit its Brief
in Support of its Motion for Summary Judgment. DART incorporates by reference its Appendix
in Support of its Motion for Summary Judgment, filed contemporaneously herein.
I
SUMMARY
On Tuesday, February 9, 2016 at approximately 8:00 p.m., Plaintiff Avi Adelman
(Adelman) was listening to his police scanner and heard a call for Dallas Fire Rescue (DFR) to
respond to a K2 overdose victim at Dallas Area Rapid Transits (DART) Rosa Parks Plaza
(RPP). (ECF 2, p. 5, 16). Adelman decided to go to RPP and noticed a man lying on the ground
being attended by DFR paramedics. Id. Adelman believed this incident might be of public interest
and began to photograph the scene. Id. For several minutes, Adelman photographed the incident
and took 161 photos and 4 video clips. (DART App., p. 134, ln. 23 p. 135, ln. 6).
It is undisputed that RPP is a public transportation station located at the corner of Elm and
Lamar in downtown Dallas that is owned and maintained by DART.
DART Police Officers Branch, Robert Craig (Craig) and Elmar Cannon (Cannon),
were in full uniform, on duty and on foot patrol when they responded to a call for service of a man
passed out, lying on the ground at the RPP, near the West End station, in downtown Dallas, Texas.
(DART App., p. 20). At the scene, one of the paramedics said to the DART officers theres a
man taking pictures and Branch walked over to the man with the camera. (DART App., p. 41,
2; p. 73, scene photo, L-R: Branch, Craig, victim, DFR staff, Cannon & DFR staff).
DEFENDANTS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE 1

The following transcript excerpts indicate Officer Branch approached Adelman because of
the perimeter she established for this incident and because she mistakenly believed the Health
Insurance Portability and Accountability Act of 1996 (HIPPA) applied in this situation. However,
the transcript excerpts will show that after the initial encounter, Branch asked Adelman to leave
DART property nine times and he refused, thereby establishing she had arguable probable cause
or was reasonably mistaken with the existence of probable cause when she arrested Adelman for
criminal trespass under Texas Penal Code 30.05.
Branchs Digital Voice Recorder (DVR) captured the following between Branch, Adelman
and DART Officer D. Flemings (Flemmings):
Branch- Ok alright, hold on Sarge hold on [on phone with a Sgt.] Sir Leave
Adelman-No..
Branch- you gotta leave
Adelman- Call your supervisor
Branch- Im talking to my supervisor

Adelman- Good
Branch - Let me see your ID

Adelman- No
Branch- let me see your Texas ID

Adelman- No...no
Branch- This is what Im going through. Well leave our property.. youre not catching..
Adelman- I dont have to leave Im not leaving this is public property
Branch- No its not this is DART property.

Adelman- No Im not leaving this is not their property I can be here I am not leaving
Branch- No you cannot ok Sarge you hear me right Alright you cannot take picture of him
while they getting
Adelman- I can take pictures I can take pictures
Branch- Not while they are getting medical attention no you cannot
Adelman- HIPPA does not apply here
Branch- Leave. No
Adelman- No.. You will have to arrest me
DARTS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE 2

Branch- Leave ok is that what you want? Have a seat..
Adelman- No.... you know HIPPA does.. the fireman know HIPPA does not apply here
Branch- No.... you cannot take pictures of him

Adelman- I can take pictures on DART property ...
Branch- No ...ok look we gonna do something totally different...Sir leave ...

Adelman- No I'm not leaving...
Branch- Leave....leave...alright .... stop ...we gonna do something different

Adelman- What are we gonna do lady? You cannot arrest me for standing here
Branch- I got one resisting ...

Adelman- I'm not resisting...
Branch- Stop...Have a seat...have a seat...have a seat...

Adelman- I'm not resisting ...
Branch- Have a seat.... stop stop...stop...whatever you doing stop sir....before you
get hurt stop
Adelman- Ok Im stopped call your supervisor hereget him onsite.
Branch- Ok
Adelman- And he will tell you I have a right to take picture in public
Branch- Not of someone getting medical treatment

Adelman- Yes HIPPA does not apply HIPPA is privacy I uh your Sgt I can
take pictures of people in public
Branch- Look I just got through talking to my Sgt. you cannot do that listen to me
Im asking you to leave... want you to leave you can take pictures from the street but
you cannot take pictures here
Adelman- Ok your badge number is 331?
Branch- Give me your ID before you leave

Adelman- No... Why? Ok you want my ID under what right what's my detention ...
Branch- Cause I'm asking you to give it to me ...

Adelman- Are you detaining me?
Branch- I'm detaining you...

Adelman- Are you arresting me?
Branch- Cause I asked you to leave...you're refusing to give me identification

Adelman- I do not have to give it unless you're arresting me...
Branch- Stop...stop...
Adelman- I'm not doing anything... I'm scratching my head ...
Branch- Ok....
Fleming- You trying to detain him?
Branch- Yep...
Fleming- Put your hands behind your back ...
Adelman- What is the arrest for....

Branch- I'm detaining you
Adelman- For what?

Branch- Cause I told you to leave Im giving you a
Adelman- I dont have to leave, its public property

Branch- Yes you do this is not public property
Adelman- I can stay and take pictures ok Ill give you my ID

Fleming- Im out with her
Branch- Have a seat No I asked you for it before and you wouldnt give it to me
Adelman- Youre going to arrest me for what? I can take pictures in public of people in
public Theres nothing thats illegal about it.
Branch- And I asked you to leave DART property

Adelman- I can stay on DART property ...there is no requirement that tells me I cannot
take pictures ...You cannot chase me and not everybody else...lt's called the right to
photograph in public ...
Branch- No ...
Adelman- Yes it is...My ID is in my right hand pocket under the camera .... In my
wallet.. .l'm leaning over ...that's it sir yes...It's the third card on the right hand side as you
flip it open...
Branch- No, I asked you several times when I was on the phone with my Sgt.
Adelman- You do realize the right to photograph in public does not. ..
Branch- But you cannot photograph them while they are receiving medical treatment ...
Adelman- Yes I can yes I can... no there is no law...
Branch- I asked you to leave didn't I? I asked you several times to leave...
(DART App., p. 63-67; p. 85).
Adelman had a video camera that simultaneously captured or overlapped the verbal
interaction at the scene between himself, Officer Branch and Officer Fleming as follows:
Branch-Sir leave, Sir, Sir you need to leave

Adelman-No

Branch-Sir you need to leave
Adelman-Call you supervisor
Branch-Im talking to my supervisor

Adelman-Good, no, Call your supervisor
Branch-Let me see you ID

Adelman-No
Branch-Stop
Adelman-ok Im stopped
Adelman-Call you supervisor here and get him on site.
Branch-ok
Adelman-And he will tell you I have a right to take pictures in public
Branch-Not if someone is getting medical treatment

Adelman-I can take pictures yes HIPPA does not apply
Branch-Look I just got through talking to with my Sgt. and you cant do that
Adelman-YourSgtI can take pictures of people in public
Branch-I want you to leaveYou can take pictures from the street but you cannot take
pictures here
Adelman-ok your badge number is 331
Branch-Yes, and I told you to leave

Adelman-And you name is?
Branch-Im identified by my badge number

Branch-Thats all you need to know
Adelman-Ok thats all I need
Adelman-I will leave but I
Branch-Give me your ID before you leave

Adelman-No why?
Adelman- Ok why? You want my ID, ok under what right? What is my detaining?
Branch-Give it to me
Adelman-Ok what am I being detained for
Branch-Give it to me
Adelman-Are you detaining me?
Branch-Yes Im detaining you

Adelman-Are you arresting me?
Branch-Cause I asked you to leave and youre refusing to give me your identification
Adelman-I do not have to give it to you unless you are arresting me
Branch-StopStop
Adelman-Im not doing anything Im scratching my head
Adelman-What is the arrest for
Branch-Im detaining you

Adelman-For what?
Branch-Because I told you to leave

Adelman-I dont have to leaveIts public propertyI can stay and take pictures
Branch-Yes you do this is DART property (handcuffs clicking)

Adelman-Ok Ill give you my ID I will give you my ID
Branch-Have a seat, no, I asked you for it before and you wouldnt give it to me
Adelman-Youre going to arrest me for what? NoI can take pictures of people in public
there is nothing illegal about that.
Branch-And I asked you to leave DART property.

Adelman-I can stay on the DART property there is no requirement that says I have to leave
when Im taking pictures, you cannot take chase with me and not everybody else, its called
the right to photograph in public.
Branch-No
Adelman-Yes it is My ID is in my right hand pocket under the camera, my wallet I
mean, here Im leaning over..thats it sir yes, its the third card on the right hand side as you
flip it open.
Fleming-Stand up for me sir

Adelman-I cant..thank you sir sir when your inside its behind one of those cards
sorry just trying to help there you go look for the stripes its in that first rack there some
where..that first wallet its in there That might be itthere it is.
Branch-Have a seat have a seat

Adelman-Ive my, I scratched my back
Branch-Have a seat
Adelman- Ok Im getting down Im getting down
Branch-Have a seatHave a seat Now when I get back-up here you want to comply
Adelman-Nono I was ready to comply before he got here
Branch-NoI asked you several times when I was on the phone with my Sgt.
Adelman-you do realize the right to photograph in public does not..
Branch-But you cannot photograph him while he is under medical treatment

Adelman-No .. yes I can..no..there is no law
Branch-I asked you to leave didnt I? I asked you several times to leave
Adelman-Write the ticket please
Branch-I am
Adelman-Can someone do a time check for me?
Fleming-time check?
Adelman-First off my hat is about to block my visioncan you push it off or take it off I
cant its rolling down. Second off Need to see what time it is ..thats what I meant by a
time check.
Fleming-Time check is 7:53

Adelman-Thank you..can youcan you take my hat off at least
Branch-You want a whole lot of things

Adelman-Because its falling down and I cant see.. ok thats great, thank youWhat will
the ticket be for may I ask?
Fleming-Who do you work for?

Adelman-I do not work for anybody Im a free lance public photographer
Fleming-What were you doing here?

Adelman-I am out here taking picturesthere no reason I have to explain past thatIve
been out here about an hour and a half. I freelanceIf someone buys my pictures then I sell
them but I dont I mean its a hard way to explain it but I do it for a living.
Fleming-Ok
Adelman-The only picture Ive sold is of a fire where they pulled out marijuana plants
thats where a house blew up it looked bad in black and white.
(DART App., p. 58-62; p. 85).
Adelman admits Branch asked him to leave the RPP, DARTs property, nine times
and asked for his identification four times and he refused. (DART App., p. 136, ln. 20 p.
137, ln. 15).
Adelman was informed he was being arrested for criminal trespass and Branch completed
an Affidavit of Arrest under penal code 30.05-criminal trespass. (DART App., p. 111-12). The
Affidavit of Arrest was presented to a Dallas County magistrate who signed the affidavit. Id.
The DART police photography policy in effect on February 9, 2016 stated:
Persons may take photographic or video images, including but not limited to
film, digital or video recordings (Images) of DART Property, including but
not limited to stations, buses, trains, or other vehicles for their personal use.
Persons taking photographic or video images must not interfere with
transportation or public safety activity while taking images. DART Police
Officers may initiate an inquiry or investigation when photography or
videotaping activity is suspicious in nature or inconsistent with this policy.
(DART App., p. 26, 2).
On February 12, 2016, DART Chief of Police James Spiller (Spiller) initiated an
internal affairs investigation of Adelmans arrest because Branchs audio recording indicated
the reason she made contact with Adelman was due to him taking pictures of a person
receiving medical treatment by DFR. (DART App., p. 16).
On February 16, 2016, Chief Spiller wrote a letter to Adelman informing him the
criminal trespass case would be dismissed and that a review of the arrest revealed that it
was not consistent with DART Police policies and directivesAlthough the officers actions
appear to be within her authority, they are not in line with department directives concerning
photography on DART property. (DART App., p. 83).
DART Police Office of Professional Standards (OPS), Officer Roy Wilt completed an
investigation of the February 9, 2016 arrest of Adelman, sustained various policy violations against
Branch and concluded:
After careful review of interviews and all documents available, DART Police
policy violations were committed. There is sufficient evidence that shows Officer
Branch did violate DART Police procedure when she failed to gather enough
articulable facts and did not establish probable cause to effect the arrest. Adelman
was taking pictures of an emergency medical scene which is his right according to
DARTs photography policy Adelman was not breaking any laws and would not
lead a reasonable person to believe that he was committing a crime or had
committed a crime or about to engage in committing a crime. Branchs initial
interaction with Adelman was based on her mistaken belief that HIPPA and
therefore the arrest of Adelman for criminal trespass was not based on sufficient
probable cause.
A law enforcement officer has probable cause to detain a person if at the time of
detainment, he has knowledge that warrant a prudent persons belief that the person
detained has been or is about to be engaged in criminal activity or is a danger to
themselves or others.
Adelman is viewed simply taking photographs of a person in a public place on

DART property who appeared to have passed out. Adelman is never viewed less
that approximately 10 feet from the actual medical scene. Officers Cannon, Craig
or DFR personnel did not witness Adelman ever interfere with medical treatment
or medical personnel.
In the field officers have to make decisions in circumstances that are tense,
uncertain, and rapidly evolving to each particular situation. Police officers are
given breathing room to make reasonable but mistaken judgments about open legal
questions. Police officers in the field aspire to make correct decisions 100% of the
time, however, real time situations do not offer the benefit of 20/20 hindsight and
officers often fall short of this aspiration despite their best good faith efforts.
(DART App., p. 9-10).
Because of the sustained findings of the internal affairs investigation, Branch was
suspended for 3 days. (DART App., p. 113).
II.
CAUSES OF ACTION AGAINST DART AND DEFENSES BY DART
Under Count III, Adelman alleges violations of his First, Fourth and Fourteenth
Amendment Rights, pursuant to 1983 by DART and Monell v. Dept. of Soc. Servs. of the City of
New York, 436 U.S. 658 (1978). (ECF 2, p. 12, Count III). Adelman alleges [i]n arresting and
jailing Adelman without probable cause for taking photographs in a public place on February 9,
2106, Officer Branch violated Adelmans clearly established First, Fourth and Fourteenth
Amendment rights. Id. p. 12, 42. Adelman alleges DART had a policy of permitting
warnings and arrest for criminal trespass if a person is on DARTs property for purposes other
than to utilize public transportation services. This policy was the moving force behind Officer
Branchs violation of Adelmans constitutional rights, as shown by, among other things, the
invocation of the criminal trespass policy by Officer Branchs supervisor and the statement by
DARTs official spokesman that DART believes the officers acted properly. Id. at 44.
Adelman further alleges DART failed to adequately train, supervise, or discipline its
officers about the First Amendment right to photograph in public, including at DART transit
locations and such failure to train, supervise, or discipline was the moving force behind Officer

Branchs violation of Adelmans constitutional rights, as shown by the statements by Officer
Branch that she never saw DARTs photography policy prior to her unlawful arrest of Adelman.
Id. at p. 13, 45. Adelman seeks a Permanent Injunction against DART alleging DARTs failure
to train, supervise and discipline its officers regarding the First Amendment right to photograph
increases the likelihood of future obstruction, harassment, and arrest by DART police officers of
members of the public and the press who are seeking to exercise their First Amendment right to
photograph at DART stations. Id. at p. 13, 50.
DART has stipulated that Officer Branch was employed as a DART police officer on
February 9, 2016 and acting in the course and scope of her employment with DART when she
believed she had arguable probable cause, good faith belief of arguable probable cause or
reasonably mistaken with the existence of probable cause when she arrested Adelman for criminal
trespass under Penal Code 30.05 and therefore is entitled to official or qualified immunity. (ECF
8, p. 6, 43; p. 7, Affirmative Defenses, 3-6). DART asserted Adelman has failed to establish the
existence of an officially adopted policy or an established custom of DART or DART police that
caused him an injury and a causal connection between the policy or custom and the deprivation of
a constitutional right. Id.
III.
SUMMARY JUDGMENT RECORD
DARTs1 summary judgment record is submitted as a separately filed Appendix and the
Appendix is incorporated by reference as if fully set forth herein.
1
DART request the Court take judicial notice of the pleadings in Case No. 3:16-cv-02579-B, specifically DARTs
Original Answer (ECF 8) wherein DART has plead defenses of official or qualified immunity and no policy that
deprived Adelman of any constitutional right.
IV.
SUMMARY JUDGMENT STANDARD
Summary judgment shall be rendered when the pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S.Ct. 2548, 2552-54, 91 L.Ed.2d 265 (1986); FED. R.
CIV. P. 56. All the evidence and the reasonable inferences to be drawn therefrom must be viewed
in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369
U.S. 654, 655 (1962). The moving party bears the burden of informing the district court of the
basis for its belief that there is an absence of a genuine issue for trial, and of identifying those
portions of the record that demonstrate such an absence. Celotex, 477 U.S. at 323.
Once the moving party has made an initial showing, the party opposing the motion must
come forward with competent summary judgment evidence of the existence of a genuine fact issue.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party
defending against the motion for summary judgment cannot defeat the motion unless he provides
specific facts that show the case presents a genuine issue of material fact, such that a reasonable
jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary
judgment. Id. at 248-50; Abbott v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other
words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat
a motion for summary judgment. Douglass v. United Servs. Auto Assn, 79 F.3d 1415, 1429 (5th
Cir. 1996). If the opposing party fails to make a showing sufficient to establish the existence of
an element essential to his case, and on which he bears the burden of proof at trial, summary
judgment must be granted. Celotex, 477 U.S. at 322-23.

V.
ARGUMENT AND AUTHORITIES
First Amendment Claims Against DART.
A. Adelmans First Amendment claim under 42 U.S.C. 1983.

Under Count III, Adelman incorporates by reference the allegations of all preceding
paragraphs of his complaint against DART and alleges:
42. In arresting and jailing Adelman without probable cause for taking photographs in a
public place on February 9, 2016, Officer Branch violated Adelmans clearly established
First and Fourteenth Amendment rights.
(ECF 2, p. 10-11).
On February 9, 2016, Adelman was asked what he was doing at RPP:
Fleming-What were you doing here?

Adelman-I am out here taking picturesthere no reason I have to explain past thatIve been out
here about an hour and a half. I freelanceIf someone buys my pictures then I sell them but I
dont I mean its a hard way to explain it but I do it for a living.
Fleming-Ok
Adelman-The only picture Ive sold is of a fire where they pulled out marijuana plants thats where
a house blew up it looked bad in black and white.
(DART App., p. 61-62).
During his deposition, Adelman further clarified why he was at RPP station on February 9,
2016:
Q: So your ---purpose for going downtown was not to protest the police?
A: No, sir.
Q: Your purpose for going downtown was not to criticize the police?
A: No, sir
Q: So you purpose for going downtown was to photograph emergencymedical emergency
scenes?
A: Yes, sir.
Q: and you indicated in your discovery responses that you took 160 photos.
A: 161 photos and 4 video clips.
(DART App., p. Adelman depo, p. 134, ln. 7-15; p. 135, ln. 4-6).
The First Amendment to the United States Constitution provides, in relevant part, that the
government shall make no lawabridging the freedom of speech, or of the press. U.S.
CONST. amend. I. Despite this broad prohibition, protection of free speech or press is not absolute.

Cox v. Louisiana, 379 U.S. 536, 554 (1965)(The right of free speech and assembly, while
fundamental in our democratic society, still does not mean that everyone with opinions or beliefs
to express may address a group at any public place and at any time.).
Section 1983 provides that any person who, under color of state law, deprives another of
any rights, privileges or immunities secured by the Constitution and laws shall be liable to the
party injured in an action at law, suit in equity, or other proper proceeding for redress
Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997). Section 1983 does not create any
substantive rights, it simply provides a remedy for the rights designated therein. Id. Therefore, an
underlying constitutional or statutory violation is a predicate to liability under 1983. Id.
To state a claim under 1983, a plaintiff must (1) allege a violation of rights secured by the
Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was
committed by a person acting under color of state law. Leffall v. DISD, 28 F.3d 521, 525 (5th Cir.
1994). The first inquiry is whether plaintiff has alleged a violation of a constitutional right at all.
Piotrowski v. City of Houston, 51 F.3d 512, 515 (5th Cir. 1995).
B. Qualified Immunity.
The DART Police Department was established pursuant to Texas Transportation Code
452.110 and DART police officers have been judicially recognized as peace officer pursuant to
Texas Code of Criminal Procedure, Art. 2.12(22). Howard v. State, 227 S.W.3d 794, 798-99 (Tex.
App.-Dallas 2006, pet. Denied); Tex. Transp. Code Ann. 452.110 (West 2015); Tex. Code Crim.
Proc. Ann., art. 2.12 (22) (West 2015).
On February 9, 2016, Officer Branch was on duty, in full uniform and within the course and
scope of her employment with DART as a police officer when she encountered and arrested
Adelman for criminal trespass under Penal Code 30.05. (DART App. 000199-201). Branch
asserted the defense of qualified immunity. (ECF 6, p. 6, 2).

Qualified Immunity protects police officers from suit unless their conduct violates a clearly
established constitutional right. Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir. 2003).
Qualified immunity balances two often conflicting interest - the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably. Pearson v.
Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 815 (2009). Through qualified immunity,
government officials conducting discretionary functions, such as the decision to arrest, are shielded
from liability for civil damages insofar as their conduct does not (1). violate clearly established
statutory or constitutional rights; and (2). of which a reasonable person would have known.
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, (1982).
If a court determines that the alleged conduct did not violate a constitutional right, the inquiry
ceases because there is no constitutional violation for which the government official would need
qualified immunity. Lytle v. Bexar Cnty., 560 F.3d 404, 410 (5th Cir. 2009). If, however, the
alleged conduct amounts to a constitutional violation, then a court must ask whether the right was
clearly established at the time of the conduct. Id.
Qualified immunity allows for officers to make reasonable mistakes about whether their
conduct violates the law, and an officers mistake is reasonable when there are insufficient indicia
that the conduct in question was illegal. Freeman v. Gore, 483, F.3d 404, 410 (5th Cir. 2007).
Courts cannot ignore that qualified immunity gives ample room for mistaken judgments by
protecting all but the plainly incompetent or those who knowingly violate the law. Poole v. City
of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).
Once the defendant raises the qualified immunity defense, the burden shifts to the plaintiff to
rebut this defense by establishing that the officials allegedly wrongful conduct violated clearly
established law. Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).

Branch has asserted the defense of qualified immunity in her respective motion for summary
judgment. To the extent applicable, DART incorporates by reference Branchs motion for
summary judgment, her Brief and Appendix in support of her motion for summary judgment as if
set forth herein for any applicable claims asserted by Adelman.
C. Official Capacity Claims.
Adelman sued Branch in her individual and official capacities as a DART police officer.
(ECF 2, p. 1).
Official capacity suits generally represent only another way of pleading an action against
an entity of which an officer is an agent. Kentucky v. Graham, 473 U.S. 159, 166 (1985). Therefore,
an official-capacity suit is in all respects, other than name, to be treated as a suit against the
governmental entity. Id. When the local governmental entity itself is a defendant than official
capacity claims against specific individuals employed by that entity are redundant and subject to
dismissal. Hicks v. Tarrant Cnty. Sheriffs Dept. 352 Fed.Appx 876, 877 (5th Cir. 2009).
Here, Adelman sued Branch in her individual and official capacity and also sued the
governmental entity-DART. Because DART is a named defendant, DART is seeking the dismissal
of the official capacity claims against its employee-Branch. Hicks at 877. (because local
government entity was a named defendant, district court did not err in dismissing official capacity
claims against its commissioners).
D. The Right to Photograph Emergency Medical Activity Was Not Clearly Established.
For a right to be clearly established, the contours of the right must be sufficiently clear that a
reasonable official would understand that what she is doing violates that right. Harlow at 818.
Stated differently, there must be sufficient precedent at the time of the action, factually like the
plaintiffs allegations, to put the defendant on notice that her conduct is constitutionally prohibited.
Id. Clearly established precedent for purposes of qualified immunity has required a showing that

a robust consensus of cases of persuasive authority delineates the right beyond debate.
Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2084 (2011).
Many federal courts have held that the right to record police has not been clearly established.
See, e.g., Montgomery v. Killingsworth, 2015 WL 289934 (E.D. Pa. Jan 22, 2015); Kelly v.
Borough of Carlisle, 622 F.3d 248, 262 (3rd Cir. 2010); Szymecki v. Houck, 353 F.Appx 852, 853
(4th Cir. 2009); ACLU of Ill. v. Alvarez, 679 F.3d 583, Fn. 10 (7th Cir. 2012); Banks v. Gallagher,
2010 U.S. Dist. Lexis 55308, at 35-36 (M.D. Pa. Mar. 18, 2010); Matheny v. Cnty. Of Allegheny,
2010 U.S. Dist. Lexis 24189, at 12 (W.D. Pa. Mar. 16, 2010); Gravolet v. Tassin, 2009 U.S. Dist.
Lexis 45876, at 12-13 (E.D. La. June 2, 2009). The exceptions to this trend include Glik v.
Cunniffe, 655 F.3d 78,82 (1st Cir. 2011) and Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th
Cir. 2000).
1. On February 16, 2017, the Fifth Circuit held in Turner v. Lt. Driver that the right to
film the police was not clearly established.
On February 16, 2017, the Fifth Circuit issued the Turner v. Lt. Driver decision, which upheld
a district courts dismissal of a 1983 freedom of speech claim in a police filming incident on the
basis of qualified immunity. Turner v. Lt. Driver, 848 F.3d 678 (5th Cir. 2017) (DART App. p.
321).
In Turner, the plaintiff filmed the Ft. Worth police station from a public sidewalk and he was
detained for questioning after refusing to identify himself. Turner at 683-84. Turner was
handcuffed, placed in the back of a patrol car and eventually was released. Id. Turner sued the
police officers who detained him, alleging violations of his First, Fourth and Fourteenth
Amendment rights under 1983. Id. The defendants moved to dismiss asserting a qualified
immunity defense and the district court granted the motions. Id.
In reviewing the case, the Fifth Circuit held that:
We cannot say, however, that existing precedentplaced theconstitutional question

beyond debate when Turner recorded the police station. Neither does it seem that the
law so clearly and unambiguously prohibited the officers conduct and that every
reasonable official would understand that what he is doing violates the law. In light of
the absence of controlling authority and the dearth of even persuasive authority, there
was no clearly established First Amendment right to record the police at the time of
Turners activities. All three officers are entitled to qualified immunity on Turners
First Amendment claim.
Turner at 687.
The Fifth Circuit concluded that at the time in question, September 2015, neither the Supreme
Court nor this court had determined whether First Amendment protection extends to the recording
or filming of police. Id. The Fifth Circuit also opined that, though the right to film the police
was not clearly established at the time of Turners arrest in 2015, it is established henceforth, i.e.
after February 16, 2017. Id. at 687-88.
In a case, like Turner, the Fifth Circuit addressed a plaintiffs claim that the defendant peace
officers violated his First Amendment right to freedom of speech and expression by interfering
with his ability to photograph and video record the aftermath of a train accident. Cobarobio v.
Midland County, Tx. 2017 WL 3495588, *1 (5th Cir. Aug. 15, 2017); (DART App. p. 335) (Citing
Turner, the Fifth Circuit noted Cobarobio was arrested in 2015 and failed to establish that there
was a clearly established First Amendment right for him to record police activity during an ongoing
emergency like this and held Cobarobio could not satisfy his burden of establishing that the
defendants are not entitled to qualified immunity).
The arrest of Adelman was on February 9, 2016 prior to the Turner in 2017. Applying the
Firth Circuits reasoning in Turner and Cobarobio, DART asserts that the First Amendment right
to film the police or by reasonable extension to photograph emergency medical activity was not
clearly established at the time of Adelmans arrest in 2016 and therefore Adelman cannot satisfy
his burden of establishing a violation of a right secured by the Constitution or laws of the United
States as required for a 1983 claim. Leffall at 525.

DART further asserts that even if Adelman attempts to distinguish Turner and Cobarobio from
the facts of this case, Adelman must prove the right to film the police or the right to photography
emergency medical activity was a clearly established right on February 9, 2016. An arguably
valid public policy concern regarding police behavior does not create a clearly established right to
film the police or photograph emergency medical activity where there was otherwise none. See,
Hathaway v. Bazany, 507 F.3d 312, 320 (5th Cir. 2007).
2. The DART Police Photography Policy is not the Equivalent of a Statutory or

Constitutional Right
On June 4, 2014, Spiller issued a DART police photography policy that in relevant part states:

Images of designated restricted areas (e.g. areas not open to the public, an area
designated for DART Employees only, etc.) are not permitted. Any person
observed taking images on, in, or of a restricted area may be subject to law
enforcement action as appropriate, provided there is no photography signage
posted.
Except as otherwise permitted by law (e.g. in conjunction with a lawful arrest,

etc.), DART Police or Fare Enforcement Officers shall not demand or take any
action to delete, view or confiscate images taken by any person.

(DART App., p. 26, 2-3).
The DART police photography policy does not mention the First Amendment and is not
the equivalent of a statutory or constitutional right. See Fields v. City of Philadelphia, 2017 WL
2884391 *6 (3rd Cir. 2017)(Plaintiffs asserted the Philadelphia Police Department had adopted
official policies recognizing the First Amendment right of citizens to record police in public and
as such these policies clearly established the legal right. The court stated [a]s plausible as that
may be on the surface, it does not win the argument. The court cited the Fifth Circuit case of
Turner and held we cannot say that the state of the law at the time of these cases (2012-13) gave
fair warning so that every reasonable officer knew that, absent some sort of expressive intent,
recording public police activity was constitutionally protected. Despite the department policies,
the court found the right to record public police activity was not clearly established).
Adelman has not met and cannot meet his burden of showing a deprivation of a First
Amendment right because the right to record police activity or by reasonable extension, the right
to record emergency medical activity was not clearly established at the time of Adelmans arrest
in 2016. Turner at p. 687-88. DART seeks dismissal of Adelmans First Amendment claims that
is based on the February 9, 2016 incident and related to the right to record police activity.
Fourth Amendment Claims Against DART.

A. Adelmans Fourth Amendment claim under 42 U.S.C. 1983.
paragraphs of his complaint against DART and alleges:
42. In arresting and jailing Adelman without probable cause for taking photographs in a
public place on February 9, 2016, Officer Branch violated Adelmans clearly established
Fourth and Fourteenth Amendment rights.
(ECF 2, p. 12, 42).
DART asserted the arrest of Adelman was supported by arguable probable cause, good
faith belief of arguable probable or reasonably mistaken with the existence of probable cause and
pled the defense of qualified immunity. (ECF 8, p. 7, 4).
The Fourth Amendment protects the right of the people to be secure in their persons,
against unreasonable searches and seizures. U.S. CONST. amend. IV. The protections of the
Fourth Amendment extend to the states pursuant to the Fourteenth Amendment. Peterson v. City
of Fort Worth, Tex. 588 F.3d 838, 845 (5th Cir. 2009). The Fourth Amendment is concerned with
ensuring that the scope of a given detention or arrest is reasonable under the totality of the
circumstances. United States v. Brigham, 382 F.3d 500, 508 (5th Cir. 2004). A law enforcement

officer may temporarily detain a person when the officer has a reasonable articulable suspicion
that a person has committed or is about to commit a crime. United States v. Chavez, 281 F.3d 479,
485 (5th Cir. 2002). An arrest must be based on probable cause. United States v. Cooper, 43 F.3d
140, 146 (5th Cir. 1995).
Probable cause exists when the totality of the facts and circumstances within a police
officers knowledge at the moment of an arrest are sufficient for a reasonable person to conclude
that the suspect had committed or was committing an offense. Flores v. City of Palacios, 381 F.3d
391, 402 (5th Cir. 2004). To satisfy the Fourth Amendment, the arresting officer must be able to
articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity.
Chavez at 485. A mistake reasonably made as to probable cause justifies qualified immunity.
Tarver v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005). Courts have recognized the need to
allow some latitude for honest mistakes that are made by officers in the dangerous, tense and
difficult process of making arrests. Maryland v. Garrison, 480 U.S. 79, 87 (1987).
The court must apply an objective standard and find that probable cause existed if the
officer was aware of facts justifying a reasonable belief that an offense was being committed. Club
Retro, L.L.C v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009). If there is probable cause for any of the
charges made, then the arrest was supported by probable cause and there is no claim for false arrest.
See Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995). An act is discretionary if it involves personal
deliberation, decision-making, and judgment. City of Lancaster v. Chambers, 883 S.W.2d 650,
1994 (Tex. 1994). Texas courts have consistently held that a law enforcement officers decision to
file a criminal complaint is a discretionary act. Smith v. Davis, 999 S.W. 2d 409, 414 (Tex. App.
Dallas, 1999).
To support a claim for unlawful arrest, a plaintiff must show that he was arrested without
probable cause. Burge v. Parish of St. Tammany, 187 F.3d 452, 482 (5th Cir. 1999). Probable
cause is a defense to a 1983 claim for false arrest. Pfannsteil v. City of Marion, 918 F.2d 1178,
1183 (5th Cir. 1990). Even if there is no probable cause to arrest the plaintiff for the crime charged,
proof of probable cause to arrest the plaintiff for a related offense also constitutes a defense. Id.
The offense establishing probable cause need not even be closely related to or based on the same
conduct that motivated the arresting officer. Devenpeck v. Alford, 543 U.S. 146, 152-154, 125
S.Ct. 588, 593-94 (2004). Probable cause is determined on the basis of facts available to the officer
at the time of the arrest, and an officer may be shielded from liability even if she reasonably but
mistakenly concludes that probable cause is present. Evett v. DETNTFF 330 F.3d 681, 688 (5th
Cir. 2003). An acquittal or dismissal of the criminal charge does not necessarily signal an absence
of probable cause for an arrest because the standards for a determination of probable cause and for
a criminal conviction are markedly different. Brumfield v. Jones, 849 F.2d 152, 155 (5th Cir. 1988).
A warrantless misdemeanor arrest represents no violation of a suspects Fourth
Amendment right if the arresting officer possesses probable cause. Bodzin v. City of Dallas, 768
F.2d 722, 724, (5th Cir. 1985).
B. Sufficient Probable Cause Existed to Arrest Adelman for Criminal Trespass.
Texas Penal Code 30.05, titled Criminal Trespass provides that a person commits the offense
of criminal trespass if he enters or remains in a building or on property of another without effective
consent and he (1) had notice that the entry was forbidden; or (2) received notice to depart but failed
to do so. Tex. Penal Code Ann 30.05(a)(West 2015). Notice means oral or written
communication by the owner or someone with apparent authority to act for the owner. Id.
30.05(b)(2). The offense of criminal trespass consists of the following elements: (1) a person; (2)
without effective consent; (3) enters or remains on the property or in a building of another; (4)
knowingly or intentionally or recklessly; and (5) had notice that entry was forbidden or received
notice to depart but failed to do so. Pena v. Bexar Cnty, Tx., 726 F.Supp.2d 675, 692 (W. D. Tex.
Jun. 21, 2010).

The purpose of the criminal trespass statute is not to regulate speech. Tex. Penal Code Ann.
30.05 (West 2015). The purpose of the criminal trespass statute is to regulate conduct. Otwell v.
State, 850 S.W2d 815, 818 (Tex. App.-Fort Worth 1993). A general trespass statute may be
constitutionally applied, even to those who trespass to communicate, as long as the statute is applied
without discrimination and is not used for the primary purpose of suppressing speech. Reed v. State,
762 S.W.2d 640, 644 (Tex. App. Texarkana 1988).
RPP is public property used for public transportation services that is owned and maintained by
DART. See Howard at 798; See also Griffin v. State, 2007 WL 4282154, *2-4 (Tex. App. Dallas
Dec. 7, 2007)(Affirming a criminal trespass arrest by DART police for criminal trespass at the
DART West End station under Penal Code 30.05).
It is undisputed that on February 9, 2016 at approximately 8 p.m. DART Officers Branch,
Cannon and Craig were at RPP located at 901 Elm in downtown Dallas to inquire about a male
passed out and needing medical treatment. DFR was also on the scene. (ECF 2, p. 5, 16); (DART
App., p. 20, 1). One of the DFR staff stated theres a man taking pictures and Branch decided
to approach the man with the camera-Adelman. (DART App., p. 41, 2) When asked, what was
the reason for her initial contact with Adelman, Branch stated:
He was moving and walking towards the medical scene. I did not know who and what he
would do to the victim, officers, paramedics or myself. He was getting to close. I did not
[know] if Adelman was the cause of the white male being in need of medical help. Avi
Adelman would not communicate his reasons for wanting access to the medical scene or
breach of my set perimeter.
Due [to] the ambush and killing of 6 to 8 police officers 2 while on duty across the USA, I
felt that protecting my co-workers back while they worked the medical scene was very
important and a safety concern.
Adelman was a suspicious person to me. He kept wanting to get access and too close to
officers and paramedics treating the white male. Adelmans behavior and actions were
suspicious and dangerous to people treating the white male. Adelman wanted with in arm
reach of the medical situation. This was not permitted.
2
This statement by Branch was made in February 2016 and does not refer to the July 7, 2016 Dallas police shooting
incident that resulted in the death of 4 Dallas Police Officers and 1 DART Police Officer at or near this location.
(DART App., p. 32, No. 1.).
In voice recordings of the incident, Branch makes the following statements:
Branch- No you cannot ok Sarge you hear me right Alright you cannot take picture of him
while they getting
Adelman- I can take pictures I can take pictures
Branch- Not while they are getting medical attention no you cannot
Adelman- HIPPA does not apply here
Adelman- No.... you know HIPPA does.. the fireman know HIPPA does not apply here
Branch- No.... you cannot take pictures of him

Adelman- I can take pictures on DART property ...
Adelman-Ok Im stoppedcall you supervisor hear get him onsite

Branch-ok
Adelman-And he will tell you I have a right to take pictures in public

Branch- Not of someone getting medical treatment
(DART App., p. 63-64).
When Branch was asked what her knowledge or understanding of HIPPA law and taking
pictures at a medical emergency scene was, she responded:
My understanding is while a person is getting treatment that person has a right to privacy.
His or her medical treatment, medical condition and personal information is private. They
have a reason[able] right to privacy. Pictures while being treated by medical DFR can
show a lot to the public when photographers displays their medical treatment and medical
conditions to the public when they thought it was secure. People have a right to private
medical treatment from DFR. They have a right to not have their medical business
exposed. HIPPA affords a person a zone of privacy that protect on [them] from others
obtaining his or her information during medical treatment. Avi Adelman pictures could
expose really personal and private information that the white male could not protect while
passed out or unable to defend.
(DART App., p. 35, No. 14).
When asked what her knowledge or understanding was on the DART Police photography
policy, Branch indicated she did not receive or know about the June 4, 2014 memo on the police
photography policy issued by Chief Spiller because she was out on sick leave when this policy

came into effect. (DART App., p. 2, 8; p. 36, No. 15; p. 176, ln. 6-12). Branch explained that
from around March 2014 she was out on sick leave for approximately 22 months and did not see
or know about the DART police photography policy. (Id.; p. 221, ln. 21 p. 222, ln. 12). Chief
Spiller explained that the training on the June 4, 2014 memo on the police photography policy
consisted of the policy being read for 5 consecutive days in roll call or detail where officers
assemble prior to going out to work, where they get their work assignments; as well as it was
placed in the Chiefs Corner bulletin on the third floor in the eating area and on the second floor
on the Chiefs Corner in the officer area and it was also placed on the L-drive (computer drive
available to all officers). (DART App., p. 292, ln. 4-20). Because Branch was out on sick leave
when the June 4, 2014 police photography policy was distributed, it is likely she was not familiar
with this policy on February 9, 2016 when she encountered Adelman at the RPP and was mistaken
that HIPPA applied to the situation with Adelman.
Branch approached Adelman because he was moving and walking towards the
medical scene; she did not know who and what he would do to the victim, officers,
paramedics or myself; Adelman would not communicate his reasons for wanting access to
the medical scene or breach of my set perimeter; she felt that protecting my co-workers
back while they worked the medical scene was very important and a safety concern;
Adelman was a suspicious person to me and he kept wanting to get access and too close
to officers and paramedics treating the white male. (DART App., p. 32).
Once Branch made the initial contact with Adelman it is established by Branchs recording
of the incident, Adelmans video and audio recording of the incident and by Adelmans own
admission that Branch asked Adelman to leave DART property nine times and asked him to
provide identification four times and he refused to follow a police order or directive. (DART App.,
p. 136, ln. 20 p. 137, ln. 15; DART App., p. 58-66). Branch did not prevent Adelman from
taking pictures as Adelman admits he took 161 photos and 4 video clips. (DART App., p. 135, ln.
4-6). Branch also did not deny Adelman total access to the scene because she informed Adelman
he could take pictures from the sidewalk. (DART App., p. 64; p. 161, ln. 13-24).
The uncontroverted evidence established that Adelman remained on DART property,
without effective consent and was given notice nine times to depart but failed to do so. Further,
the uncontroverted evidence also established that Adelman refused to provide identification when
he was asked on four occasions.
Probable cause exists when the totality of facts and circumstances within a police officers
knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the
suspect had committed or was committing an offense. United States v. Levine, 80 F.3d 129, 132
(5th Cir. 1996). Even if probable cause does not exist, which it does in Adelmans arrest for
criminal trespass, qualified immunity protects officers who reasonably but mistakenly violate a
plaintiffs rights. Freeman at 415.
Branch approached Adelman and informed him to stay back and that he was not allowed
to take photos of the passed-out victim because she mistakenly believed HIPPA applied and she
was on sick leave when the June 4, 2014 DART Police photography policy was issued. Branch
reasonably and in good faith believed Adelman was at RPP without effective consent in violation
of Penal Code 30.05, thus establishing probable cause, arguable probable cause or mistaken belief
on the existence of probable cause to arrest Adelman for criminal trespass. DART has established
Branch had probable cause to arrest Adelman.
DARTs retained expert Albert Ortiz (Ortiz) reviewed the incident involving Branch and
Adelman and provided his opinion on the reasonableness of Branchs actions and on the existence
of probable cause. (DART App., 309-312). In summary, Ortiz states:

The Plaintiff admits Branch, an agent of DART, ordered him to leave the property
nine times but he refused. Branch did not stop the Plaintiff from taking pictures she just
ordered him to do it off DART property. He refused. The Plaintiff ignored four requests
by Branch to provide his identification. She exercised her discretionary authority and
arrested him for Criminal Trespass. It is my opinion that any officer in the same or similar
circumstances as Officer Branch could reasonably believe probable cause existed to believe
the Plaintiff had committed Criminal Trespass and could have acted in the same or similar
manner as Officer Branch.
(DART App., p. 311, 4).
Chief Spiller also provided testimony on his opinion on the reasonableness of Branchs
actions and on the existence of probable cause:
Q. what is your position in reference to her [Branch] approaching him [Adelman] in

reference to him taking photographs -taking photos of the scene?
A. She [Branch] mistakenly approached him [Adelman] based upon HIPPA. She
thought there was an interferenceIts my belief she thought there was an interference
because of HIPPA rules. Upon asking him to leave and asking him for ID, which he
failed to produce, he failed to leave. She asked numerous times. Then thats where I
think the probable cause came in for the arrest, his failure to depart the area when she
had directed him to.
Q. as the Chief of Police for the DART Police Department, in reference to criminal
trespasses, in your experience, how many times do you or other officer that youre
aware of usually ask people to leave, in a criminal trespass circumstance, before they
take some kind of action?
A. Normally two.
Q. So in your position as chief of police, you believe that its reasonable that, after
you ask somebody to leave DART property twice, that its reasonable that they may
use discretion and make an arrest for criminal trespass?
A. Yes.
(DART App., p. 288, ln 14 p. 289, ln. 2; p. 289, ln. 16-22; p. 290, ln. 21 p. 291, ln. 2).
Based on the totality of circumstances, Branchs actions toward Adelman were based on
probable cause, reasonable and did not violate Adelmans Fourth Amendment right. See Pena at
693-94. (Pena refused to leave the courthouse after being asked, refused to provide his
identification and was arrested for criminal trespass. The officers who arrested Pena were entitled
to qualified immunity because they reasonably perceived that Pena was in the courthouse without
effective consent when they arrested him); See also; Skinner v. Gragg, 650 Fed.Appx. 214, 215-
16 (5th Cir. 2016) (Skinner was arrested for criminal trespass after refusing to leave a mall after
being asked to leave by security. The charge was later dismissed and Skinner sued alleging

violation of his Fourth Amendment and other Texas tort claims. Officer Gragg had been informed
by radio that Skinner was refusing to leave and when he arrived at the mall, Skinner was still
present and he was arrested for criminal trespass. The court held a reasonable officer could have
concluded that there was probable cause to arrest Skinner for criminal trespass); Ryans v.
Gresham, 6 F.Supp.2d 595, 596-03 (E. D. Texas Apr. 10, 1998) (Ryans refused to leave a public
school where she was observing how her son who was being treated by classmates. Ryans was
asked several times to leave and she refused. Police were called to the school and Ryans still
refused to leave alleging she had permission and a right to be present at the school. Ryans was
arrested for criminal trespass and the charge was later dismissed. Ryans sued city, school district
and police officer alleging violations of her First, Fourth and Fourteenth Amendment rights. Court
held police officer had probable cause to arrest Ryans for criminal trespass because despite having
permission, she was ordered off the premises, Ryans remained and a reasonable prudent person in
this situation would have concluded the elements of criminal trespass were present); and Bodzin
v. City of Dallas 768 F.2d 722 (5th Cir. 1985) (Bodzin was gathering signatures urging the Dallas
City Council to grant a special property tax for homeowners and set up a chair, signs and card table
on a sidewalk near a shopping center on Mockingbird Lane. A manager of Skaggs grocery
demanded Bodzin leave, he refused and police were called. Police arrested Bodzin for criminal
trespass and the charges were later dropped. Bodzin sued the police officers, City of Dallas and
Skaggs asserting unconstitutional arrest, violation of his First Amendment rights and related state
law claims. The court held that because Bodzin refused to leave after he was told he wasnt
welcomed, the officers had probable cause to believe Bodzin had committed all the elements of
criminal trespass and he could not recover on any of his claims).
The evidence presented from Branch, Spiller and Ortiz establish the actions taken by
Branch were reasonable and in compliance with the police departments policies of probable cause
for an arrest and both Spiller and Ortiz stated that any officer in the same or similar circumstances
as Branch could reasonably believe probable cause existed and it was reasonable to arrest
Adelman for criminal trespass under Penal Code 30.05.
Adelman cannot present any evidence to contradict the probable cause basis for his arrest
for criminal trespass because of his admission that he was asked to leave RPP, DART property
nine times and refused; and he was asked for ID four times and he also refused. When facing
summary judgment, the plaintiff cannot rely on the pleadings, but must go beyond them and by
his own affidavit or deposition, expert testimony, answers to discovery or admissions on file to
designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324.
Adelman has not done so and the only competent summary judgment before the court shows
probable cause existed for Branchs actions, there was no violation of Adelmans Fourth
Amendment right and DART is entitled to dismissal of this claim.
C. No excessive force was used against Adelman
Adelman alleges ... Officer Branch escalated the situation and began demanding
identification from Adelman and then used force to grab Adelman by the wrist and restrain him
with double locked handcuffs. (ECF 2, p. 6, 18). To the extent, Adelman argues that because
Branch lacked reasonable suspicion or probable cause to detain or arrest him, any force used
against him was excessive, DART asserts Adelmans physical injury, if any was de minimis.
To prevail on an excessive force claim, a plaintiff must show: (1) an injury, (2) which
resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness
of which was clearly unreasonable. Harper v. Harris Cnty, 21 F.3d 597, 600 (5th Cir. 1994).
Although the courts no longer require significant injury for excessive force claims, the injury
must be more than de minimis. Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999). The Fifth
Circuit, has heled that handcuffing too tightly, without more, does not amount to excessive force.
Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001).
In relation to his alleged mental and physical damages or injuries, Adelman testified:
Q. ..since February 9th of 2016, have you sought the services of a psychologist?

A. No, I havent
Q. Since February 9th of 2016, have you sought the services of a psychiatrist?
A. No. sir.
Q. Since February 9th of 2016, had you been prescribed any medication for any kind of
anxiety or depression?
A. No, sir.
Q. Since February 9th of 2016, have you sought out services of any mental health
professional, including a social worker or a counselor or anyone in the mental health field?
A. No, sir.

Q. Did you have any physical injuries?
A. No. sir.
(DART App., p. 138, ln. 11 p. 139, ln. 2; p. 140, ln. 16-19).
Because Adelman does not have any degree of physical harm greater than de minimis from
the handcuffing or has established that he suffered psychological injury from the handcuffing or
has submitted evidence that the handcuffing was excessive or unreasonable, he cannot establish
that his constitutional rights were violated as needed to satisfy the injury requirement for any 1983
claim. Glenn at 314; Flores v. City of Palacios, 381 F.3d 391, 400-01 (5th Cir. 2004). DART is
entitled to dismissal of Adelmans excessive force claim.
No DART Policy or Policymaker was the Moving Force Behind any Violation of a
Constitutional Right Alleged by Adelman.
Under Count III Adelman alleges:
44. .DART had a policy of permitting warnings and arrest for criminal trespass if
a person is on DARTs property for purposes other than to utilize public
transportation services. This policy was the moving force behind Officer Branchs
violation of Adelmans constitutional rights, as shown by, the invocation of the
criminal trespass policy by Officer Branchs supervisor and the statement by DARTs
official spokesman that DART believes the officers acted properly.

46. Because DARTs policies and practices were the moving force behind Officer
Branchs violation of Adelmans constitutional rights, DART is liable under 42
U.S.C. 1983.
(ECF 2, p. 12-13, 44 & 46).

Adelman describes the policy under 44 of his complaint, however (1) he does not
specifically identify or produce a copy of the policy with this exact wording; (2) he does not
identify the policymaker; and (3) he does not explain how DARTs policies and practices were the
moving force behind DARTs violation of Adelmans constitutional rights. DART denied the
allegations in Adelmans complaint under 44 & 46 and asserted DART had no policy or custom
of DART or DART police that caused any injury to Adelman and denied a causal connection
between any policy or custom and the deprivation of a constitutional right. (ECF 8, p. 6, 44 &
46; p. 8, 5).
In response to DARTs discovery request to identify any unconstitutional policies Adelman
was referring to in his complaint, Adelman responded:
DARTs unconstitutional policies include (a) any criminal trespass policy that allows
DART Police to arrest citizens without probable cause for being on public property;
(b) any photography policy that allows DART Police to arrest journalists or members
of the public who are engaged in photographing or recording police or medical
personnel at DART stations and transit centers; and (c) any training policies that do
not require DART Police to be trained in the right to photograph.
(DART App., p. 316, No. 14).
Adelman does not specifically identify a policy, the policymaker or how any policy was
the moving force behind any violation of a constitutional right.
DART believes the policy Adelman may be referring to, or that has similar language stated
in his complaint is found in DARTs Code of Conduct for Persons on DART Vehicles, Facilities
or Property. (DART App. p. 108, No. 15). In 2007, after receiving numerous complaints about
circumstances and the behavior of others on DART vehicles, DART facilities and on DART
property, DARTs Passenger Code of Conduct was established and the relevant part reads:
Section 2.01. Purpose. DART desires to build, establish and operate a safe, efficient,
and effective mass transportation system. For the safety and comfort of all persons,
DART has established the following regulations that apply to the conduct of a person
that may adversely affect others using or operating the DART transportation system.
Section 2.02. Prohibited Conduct and Enforcement.

(a) A person is prohibited from committing the following acts on a DART vehicle,
DART facility, or DART property unless otherwise specified in this Section:
(1)
.
(15) Unauthorized use of a DART facility or DART property for non-transportation
related purposes;
(b) A person who violates one or more of these regulations may be warned and/or
ordered to leave the DART ... facility immediately by a DART Police Officer
. Situations where a person refuses to leave a DART facility after being
ordered to do so may be handled by DART Police or other appropriate law
enforcement agencies.
(c) This section does not seek to limit or conflict with any federal, state, or local law
or ordinance; or to prevent any law enforcement agency or entity from taking any
lawful action against any person on a DART facility, or DART property.
(DART App., p. 108-09).
DART Police have a General Order titled Arrest without a Warrant that in relevant part
states:
The most important legal question facing an officer at the moment of an arrest is
the existence of probable cause. Without probable cause, the arrest is illegal and
the evidence of criminality that was obtained because of the arrest is inadmissible
Probable cause exists where the facts and circumstances within [the arresting
officers] knowledge and of which they had reasonable trustworthy information are
sufficient in themselves to warrant a man of reasonable caution in the belief that an
offense has been or is being committed and that the person to be arrested committed
it. An officer must have probable cause to make an arrest.
Federal and state constitutions protect individuals from arbitrary and oppressive
interference with privacy by law enforcement. Further, officers must have probable
cause that a crime has been committed, and that the person to be arrested has
committed the crime.
(DART App., p. 99, II & III.B; p. 100, V.A)
The DART Police have a General Order titled Police Code of Conduct that outlines for
each officer the protection of persons, their rights and their property and in relevant part states:
1.6(1) No officer shall arrest any person or search any premises or person except
with a warrant of arrest, a search warrant, or where such arrest or search is
authorized without a warrant under the laws of the State of Texas, the United States,
or local ordinances.
1.6(2) All officers shall protect the rights of any person held in custody and no
officer shall verbally abuse or use any unnecessary force or violence against any
such persons.
1.6(3) No officer shall falsely cite, arrest, imprison, or direct any malicious
prosecution against any person.
(DART App. p. 86; p. 95, 1.6(1-3)).
On June 4, 2014, Spiller issued a DART Police photography policy that was in effect on
February 9, 2016 when Adelman was arrested for criminal trespass that in relevant part states:

Images of designated restricted areas (e.g. areas not open to the public, an area
designated for DART Employees only, etc.) are not permitted. Any person
observed taking images on, in, or of a restricted area may be subject to law
enforcement action as appropriate, provided there is no photography signage
posted.
Except as otherwise permitted by law (e.g. in conjunction with a lawful arrest,

etc.), DART Police or Fare Enforcement Officers shall not demand or take any
action to delete, view or confiscate images taken by any person.

(DART App., p. 26, 2-3).
It is well established that a governmental entity is not liable under 1983 on the theory
of respondeat superior. Monell v. Dept of Social Services, 436 U.S. 658, 694 (1978). A
governmental entity is almost never liable for an isolated unconstitutional act on the part of an
employee, it is liable only for acts directly attributable to it through some official action or
imprimatur. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001). To establish
municipal liability under 1983, a plaintiff must show that (1) an official policy; (2)

promulgated by the governmental policymaker; (3) was the moving force behind the violation
of a constitutional right. Id.
A policy or custom is official only when it results from the decision or acquiescence
of the municipal officer or body with final policymaking authority over the subject matter of
the offending policy. Jett v. Dallas Indep. Sch. Dist., 491 U.S.701, 737 (1989). A plaintiff
must show the policy was promulgated by the governmental entitys policymaker because there
is no de facto final policymaking authority. Gros v. City of Grand Prairie, Tx., 181 F.3d
613, 616 (5th Cir. 1999). A plaintiff must establish that the policy was the moving force behind
the violation, i.e. must show a direct causation, meaning there must be a direct causal link
between the policy and the violation. Piotrowski at 580. Isolated violations are not the
persistent, often repeated, constant violations, that constitute custom and policy as required for
municipal section 1983 liability. Bennett v. City of Slidell, 728 F.2d 762, 768 (5th Cir. 1984).
The policies identified above by DART are facially innocuous and lawful policies. A
plaintiff seeking to establish governmental liability on the theory that a facially lawful
governmental policy has led an employee to violate a plaintiffs rights must demonstrate that the
governments action was taken with deliberate indifference to its known or obvious consequences.
Piotrowski at 585. In addition to culpability, there must be a direct causal link between the
governmental policy and the constitutional deprivation which Monell describes this high threshold
of proof by stating that the policy must be the moving force behind the violation. Monell at 694.
Deliberate indifference is a stringent test and a showing of simple or even heightened
negligence will not suffice to prove governmental culpability. Piotrowski at 580. A plaintiff must
specifically identify each and any policy which allegedly caused the constitutional violations and
it must be determined whether each one is facially constitutional or unconstitutional. Id. at 580-
81.

Here, Adelman does not challenge the constitutionality of the criminal trespass statute,
Penal Code 30.05 under which he was arrested. (DART App., 316, No. 15). Branch approached
Adelman because he was moving and walking towards the medical scene; she did not
know who and what he would do to the victim, officers, paramedics or myself; Adelman
would not communicate his reasons for wanting access to the medical scene or breach of my
set perimeter; she felt that protecting my co-workers back while they worked the medical
scene was very important and a safety concern; Adelman was a suspicious person to me
and he kept wanting to get access and too close to officers and paramedics treating the white
male. (DART App., p. 32). Branch mistakenly believed HIPPA prevented Adelman from
taking pictures of the victim, however Adelman admits he took 161 photos and 4 video clips
and Branch did not deny Adelman total access to the scene as she informed him, he could take
photos from the sidewalk. (DART App., p. 174, ln. 24 p. 175, ln.12; p. 161, 13-24; p. 135,
ln. 4-6). Branch explained that from around March 2014 she was out on sick leave for
approximately 22 months and did not see or know about the DART Police Photography
policy. (DART App., p. 36, No. 15; 176, ln. 1-12; p. 221, ln. 17 - p. 222, ln. 12; p. 2, 8).
Branch arrested Adelman for criminal trespass, under Penal Code 30.05 after she asked him
to leave DART property nine times and he refused. (DART App., p. 136, ln. 20 p. 137, ln.
15). Adelman admits he was not on DART property to use DART transportation services
but was on DART property taking pictures and if someone buys my pictures then I sell
them (DART App., p. 61). Branch admitted that the arrest of Adelman for criminal
trespass was the first time she had ever arrested someone that involved a person taking photos.
(DART App., 160, 11-21).
A magistrate, as an independent intermediary, reviewed the Affidavit of Arrest of
Adelman for criminal trespass under Penal Code 30.05 and signed the affidavit. (DART
App., p. 111-12). See, Shields v. Twiss, 389 F.3d 142, 150 (5th Cir. 2004) (once facts
supporting an arrest are placed before an independent intermediary such as a magistrate or
grand jury, the intermediarys decision breaks the chain of causation for false arrest or
unreasonable arrest). The Fifth Circuit has held that the chain of causation is broken only
where all the facts are presented to the grand jury or magistrate and the malicious motive, if
any, of the officer does not lead him to withhold any relevant information. Hand v. Gary 838
F.2d 1420, 1427 (5th Cir. 1998). There is no evidence Branch withheld any relevant evidence
from the magistrate.
On February 12, 2016, Spiller initiated an internal affairs investigation of Adelmans
arrest because Branchs audio recording indicated the reason she made contact with Adelman
may have been due to him taking pictures of a person receiving medical treatment by DFR.
(DART App., p. 16). On February 16, 2016, Chief Spiller wrote a letter to Adelman informing
him the criminal trespass case would be dismissed. (DART App., p. 83). Chief Spiller
testified that he has been employed as DART Police Deputy Chief and Chief of the DART
Police Department for a combined 16 years and he could not recall another incident or lawsuit
that involved the First Amendment. (DART App., p. 229, ln. 7-15; p. 231, ln. 21-24). On
March 14, 2016, DART Deputy Chief Edward Addison wrote Adelman a letter informing him
the criminal trespass warning issued to him on February 9, 2016 has been voided. (DART
App., p. 84). DART Police Office of Professional Standards (OPS), Officer Roy Wilt completed
an investigation of the February 9, 2016 arrest of Adelman, sustained various policy violations
against Branch and because of the sustained findings of the internal affairs investigation, Branch
was suspended for 3 days and underwent additional training on the DART Police Photography
Policy. (DART App., p. 113-15; p. 182, ln. 11-15; p. 183, ln. 14-20). Adelman cannot offer any
other complaints against DART officers or DART that are similar to his or that involve the arrest
of others related to the DART Police Photography Policy.

In addition, as noted above in Turner, the First Amendment right to film the police or by
reasonable extension to photograph emergency medical activity was not clearly established at the
time of Adelmans arrest on February 9, 2016.
Based on these facts and DARTs identification of facially innocuous policies or
facially lawful policies, Adelman cannot establish the stringent proof required to show these
policies were promulgated with deliberate indifference to the known or obvious consequences
that constitutional violations would result. Adelman does not identify the policymaker who
could be held responsible through actual or constructive knowledge for enforcing a policy that
did or did not cause Adelmans arrest. Adelman cannot establish a moving force nexus
between any policy and the individual violation of a constitutional right. See Piotrowski at
572-73 (woman whose boyfriend shot and rendered her a paraplegic sued the City of Houston
because the boyfriend had cultivated police friendships and hired off-duty officers to work for
him in exchange for police favors and cover-up of police misdeeds. Court found that despite
the disturbing misconduct by police and internal affairs exonerations of the officers conduct,
the evidence did not support municipal liability under 1983). A facially lawful policy that
allows for the possibility that a constitutional violation may occur is insufficient to indicate
deliberate indifference and impose liability on the governmental entity or policymaker. See
Oliver v. Scott, 276 F.3d 736, 743 (5th Cir. 2002).
Because Adelman failed to establish all the required grounds for governmental liability
under 1983, DART is entitled to summary judgment on these claims.
DART did not to Fail Train, Supervise or Discipline its Officers about the First Amendment
Right to Photograph in Public.
Under Count III Adelman alleges:
45. DART failed to adequately train, supervise, or discipline its officers about
the First Amendment right to photograph in public including at DART transit
locations. This failure to train, supervise, or discipline was the moving force behind
Officer Branchs violation of Adelmans constitutional rights, as shown by the
statement by Officer Branch that she never saw DARTs photography policy prior to
her unlawful arrest of Adelman.
(ECF 2, p. 13, 45)
DART denied the allegations in 45 of Adelmans complaint. (ECF 8, p. 6, 45). Adelman
does not challenge the state mandated minimum training requirements promulgated by the Texas
Commission on Law Enforcement (TCOLE). (DART App. p. 316-17, Interrogs. #17-21).
Branch received her basic peace officer license on July 28, 2007 and prior to February 9,
2016, had obtained the Intermediate, Advanced and Masters peace officer certification. (DART
App., p. 116). Branch has a bachelors degree in Criminal Justice from the University of North
Texas. (DART App., p. 147, ln. 19-22). Branchs TCOLE records indicate that as of November
11, 2016, she had over 2,184 TCOLE approved training hours. (DART App., p. 117; p. 124). On
February 9, 2016, when the incident with Adelman occurred, Branch had obtained the highest
peace officer certification offered by TCOLE. (DART App., p. 116, p. 1, 4; p. 311, 2).
In general, there are only limited circumstances in which an allegation of a failure to train
can be the basis for liability under 1983. City of Canton v. Harris, 489 U.S. 378, 387, 109 S. Ct.
1197 (1989). Only where a governmental entitys failure to train its employees in a relevant area
can deliberate indifference be established and thought of as a governmental policy or custom
actionable under 1983. Id. at 389. To demonstrate such deliberate indifference for purposes of
failure to train, a pattern of similar constitutional violations by untrained employees is ordinarily
necessary. Connick v. Thompson, 563 U.S. 51, 62, 131 S.Ct. 1350 (2001). In the absence of
previous violations, a plaintiff must show the alleged violation was a highly predictable
consequence of a failure to train. Bd. of Cnty. Commrs v. Brown, 520 U.S. 397, 398, 117 S.Ct.
1382 (1997).
Any failure to train or supervise claim requires the plaintiff to show: (1) the supervisor
either failed to supervise or train the subordinate official; (2) a causal link exists between the failure

to train or supervise and the violation of the plaintiffs rights; and (3) the failure to train or
supervise amounts to deliberate indifference. Estate of Davis v. City of North Richland Hills, 406
F.3d 375, 381 (5th Cir. 2005). To meet this stringent standard of deliberate indifference, plaintiff
must prove not only a pattern of violations, but also that the inadequacy of the training was obvious
and obviously likely to result in a constitutional violation. Id. For liability to attach based on an
inadequate training claim, a plaintiff must allege with specificity how a particular training program
is defective. Benavides v. City of Wilson, 955 F.2d 968, 973 (5th Cir. 1992).
The Fifth Circuit has held that if the training of police officers meets state standards, there
can be no cause of action for a failure to train absent a showing that the legal minimum training
was inadequate to enable the officers to deal with the usual and recurring situations they would
likely face. ONeal v. City of San Antonio, 344 Fed.Appx 885, 888 (5th Cir. 2009). With respect
to the deliberate indifference element, a plaintiff seeking recovery under a failure to train or
supervise rationale must prove that the supervisor failed to control an officers known propensity
for the improper conduct. Roberts v. City of Shreveport, 397 F.3d 287, 292 (5th Cir. 2005).
Here, it is undisputed that all DART police officers must meet the minimum standards and
training requirements for the basic peace officer license mandated by TCOLE. (DART App., p.
1, 4). It is also undisputed that Branch holds a bachelors degree in Criminal Justice; prior to
February 9, 2016 Branch had obtained the basic peace officer license; the Intermediate, Advanced
and Masters peace officer certification (the highest offered by TCOLE); and as of November 11,
2016, Branch had over 2,184 TCOLE approved peace officer training hours. (DART App., p. 1,
4; p. 116-17; p. 124; p. 147, ln. 19-22).
Beyond his conclusory allegations, Adelman cannot present any evidence DARTs training
requirements failed to meet state standards or that the training was somehow deficient or
inadequate and there is no genuine issue of material fact on this issue.

In reference to Adelmans claim of failure to supervise, Branch testified that the arrest of
Adelman for criminal trespass was the first time she had ever arrested someone that involved
a person taking photos. (DART App., p. 160, ln. 11-21). There is no evidence Branch has
ever had any other sustained complaints in the past involving the First Amendment or
specifically any sustained complaints in the past involving the right to photograph. DART
has established that on February 9, 2016 when Adelman was arrested, DART Police had a
photography policy that allowed persons to take photographic or video images of DART
property. (DART App., p. 26, 2).
A showing of deliberate indifference under a failure to supervise claim is difficult.
Sanders-Burns v. City of Plano 594 F.3d 366, 381 (5th Cir. 2010). Notice of a pattern of
similar violations is required and those prior acts must be fairly similar to what ultimately
transpired. Id. Adelman presents no evidence Branch was habitually violating the rights of
citizens by depriving them of an alleged right to photograph medical emergency activity,
especially when this right was not clearly established on February 9, 2016, when Adelman
was arrested for criminal trespass. See Turner at 687. In addition, Adelman cannot produce
any evidence the DART Police Department or Sgt. Hutchins or Chief Spiller was on notice of
any pattern of similar sustained violations by Branch. Adelman cannot establish any alleged
failure to supervise on the part of DART Police that reflects a deliberate or conscious choice
to deny any citizen the right to photograph medical emergency activity.
In reference to Adelmans claim of a failure to discipline, it is undisputed that based
on the totality of circumstances involving the arrest of Adelman on February 9, 2016, Branch
was issued a 3-day suspension. (DART App., p. 113-15).
As a matter of law, there is no reasonable basis to conclude that DART or any other DART
Police supervisor acted with deliberate indifference to the rights of citizens with respect to the
training, supervision or discipline of DART Police Officers or specifically, Officer Branch.

Punitive Damage Claim Against DART
paragraphs against DART. (ECF 2, p. 12, 41). In his First and Fourth Amendment claim against
Branch Adelman alleges, Branch acted with evil motive or intent and/or reckless and callous
indifference of Adelmans First [and] Fourth Amendment rights, entitling Adelman to punitive
damages. (ECF 2, p. 11, 34; p. 12, 40).
Although punitive damages are not recoverable in Section 1983 claims against a
governmental entity or it officials acting in their official capacities, punitive damages can be
recovered in Section 1983 individual-capacity claims. Smith v. Wade, 461 U.S. 30, 35 (1983).
DART incorporates by reference as if set forth herein Branchs argument and authorities on
punitive damages recoverable on an individual capacity basis under 1983. (ECF 46, p. 35-38).
Adelman is not entitled to recover punitive damages in his 1983 claims against a
governmental entity such as DART or against Branch who was acting in her official capacity as a
DART police officer. In the alternative, Adelman cannot satisfy his burden of establishing that
Branch acted with a reckless or callous disregard for Adelmans rights or that Branchs actions
were motivated by an evil motive or intent. Therefore, Adelman is not entitled to punitive
damages under Section 1983 against DART or Branch in her official or individual capacity.
The Court Should Deny Adelmans Request for Permanent Injunction.
Seeking a permanent injunction, Adelman specifically alleges:
50. DARTs unconstitutional policies also are likely to result in obstruction,

harassment, and arrest by DART police officers of other members of the public and
the press who wish to exercise their First Amendment right to photograph at DART
stations. Indeed, DART made 254 arrest for criminal trespass from January to July
2016 pursuant to its unconstitutional policies. Moreover, DARTs failure to train,
supervise, and discipline its officers regarding the First Amendment right to
photograph increases the likelihood of future obstruction, harassment and arrest by
DART police officers of members of the public and the press who are seeking to
exercise their First Amendment right to photograph at DART stations.


(ECF 2, p. 13-14, 50).
A permanent injunction is an extraordinary and drastic remedy, not to be granted routinely,
but only when the plaintiff by a clear showing carries the burden of persuasion. Holland Am.
Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985). To succeed in obtaining the
Courts extraordinary injunctive relief, a plaintiff must prove the following elements: (1) a
substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the
injunction does not issue; (3) that the threatened injury to the plaintiff outweighs any damage the
injunction might cause to the opponent; and (4) that the injunction will not disserve the public
interest. Villas at Parkside Partners v. City of Farmers Branch 701 F.Supp 2d 835, 859 (N.D.
Tex. 2010). Even when a plaintiff establishes the four elements required for a permanent
injunction, the decision to grant or deny it remains in the courts discretion. Lemon v. Kurtzman,
411 U.S. 192, 200-01, 93 S.Ct. 1463 (1973).
Here, Adelman alleges unconstitutional policies, but does not specifically identify which
DART policies are unconstitutional. DART incorporates its arguments above on its lawful policies
to show Adelman cannot meet the required elements for a permanent injunction because the facts
here show: (1) the right to film the police or by reasonable extension to photograph emergency
medical activity was not clearly established at the time of Adelmans arrest for criminal trespass,
Turner at 687; (2) DART had and has a photography policy that allows person to take photographic
images or video images of DART property that was in effect on February 9, 2016 when Adelman
was arrested for criminal trespass, (DART App., p. 26); (3) Adelman was arrested for criminal
trespass under Penal Code 30.05 after he admitted he was told to leave nine times and refused,
(DART App., p. 136, ln. 20 p. 137, ln. 15); (4) a magistrate, as an independent intermediary,
reviewed the Affidavit of Arrest of Adelman for criminal trespass under Penal Code 30.05 and
signed the affidavit, (DART App., p. 111-12); (5) Adelman does not challenge the constitutionality
of Penal Code 30.05, (DART App., p. 316, Interrog. No. 15); (6) case law has upheld a criminal
trespass arrest at DARTs West End station, Griffin at *2-4; (7) DARTs Passenger Code of
Conduct is a facially innocuous or lawful policy, (DART App., p. 108-09); (8) DARTs Police
General Order, titled Arrest without a Warrant and the DART Police Code of Conduct are policies
that protect the constitutional rights of citizens, (DART App., p. 99; p. 95, 1.6, (1-3)); (9)
Adelman cannot establish a habitual pattern that DARTs failure to train, supervise or discipline
its officers regarding the First Amendment right to photograph will increase the likelihood of
future obstruction, harassment or arrest; and (10) DART police took the necessary steps to
investigate the circumstances involving Adelmans arrest, took appropriate action and dismissed
the criminal trespass charges and warning issued to Adelman, (DART App., p., 16; p. 84; p. 110;
p. 159).
Since Adelmans likelihood of success on the merits is negligible and he cannot establish
a substantial threat of irreparable injury if the injunction is not issued, DART respectfully requests
that this Court deny Adelmans request for a permanent injunction.
STATE LAW CLAIMS AGAINST DART
To the extent, Adelman is alleging any state law claims against DART for assault, battery,
false arrest, damage to his reputation or any other intentional tort claim, DART asserts it is entitled
to governmental immunity. (ECF 8, p. 6-7, 1-2). The Texas Tort Claims Act (TTCA) provides
a limited waiver of immunity for certain suits against Texas governmental entities and their
employees. Tex. Civ. Prac. & Rem. Code 101.021 & 101.106. If a plaintiff sues both a
governmental entity and any of its employees under the TTCA, as Adelman has in this case, the
employee shall immediately be dismissed on the filing of a motion by the government unit. Id. at
101.106; Mission Consol. ISD v. Garcia 253 S.W.3d 653, 655-57 (Tex. 2008) (The TTCAs
apparent purpose was to force a plaintiff to decide at the outset whether an employee acted
independently and is thus solely liable, or acted within the general scope of her employment such
that the governmental unit is vicariously liable). Here, Adelman sued DART and Branch, an
employee of DART, so DART is seeking the dismissal of Branch pursuant to 101.106 for any
state law claims Adelman is alleging against Branch. See Garcia at 658-59.
In addition, DART asserts the TTCA expressly does not apply to claims arising out of
assault, battery, false imprisonment or any other intentional tort. Tex. Civ. Prac. & Rem. Code
101.057(2). This means that any claims by Adelman against DART that are based on any
intentional tort does not fall under the purview of the TTCA and are precluded by DARTs
governmental immunity.
CONCLUSION
Discovery has now closed on this case and an opportunity for a curative amendment would
be futile. DART seeks summary judgment on all of Adelmans claims against DART.
WHEREFORE, PREMISES CONSIDERED, DART request this Motion be granted, that
Adelmans claims against DART be dismissed with prejudice and that DART be granted such
other and further relief to which it may show it is justly entitled, at law and in equity.
Respectfully submitted,
By: s/Higinio Gamez

Higinio Gene Gamez
SBN: 90001969
Sr. Assistant General Counsel
LEGAL DEPARTMENT
DALLAS AREA RAPID TRANSIT
P. O. Box 660163
Dallas, Texas 75266-7255
Tel: (214) 749- 3196
Fax (214) 749-0281
E-mail: ggamez@dart.org
Attorney for DART

CERTIFICATE OF SERVICE
This is to certify that on September 15, 2017, a copy of this document was served via the
Courts ECF filing system or by facsimile upon Plaintiffs Counsel: Tyler J. Bexley, Reese,
Gordon, Marketos, LLP, 750 N. Saint Paul Street, Suite 610, Dallas, Texas 75201-3202. Fax: 214-
501-0731, tyler.bexley@rgmfirm.com and Jane E. Bishkin, 10000 N. Central Expressway, Suite
400, Dallas, Tx. 75231, Fax: 214 749-0281; jbish@swbell.net
By: s/ Higinio Gamez

Higinio Gene Gamez
Attorney for Defendant DART

2017 - 09 - 15 DKT 49 DART Brief SPT MSJ

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

2017 - 09 - 15 DKT 49 DART Brief SPT MSJ

Uploaded by

Copyright:

Available Formats

Case 3:16-cv-02579-B Document 49 Filed 09/15/17 Page 1 of 51 PageID 698

IN THE UNITED STATES DISTRICT COURT

By: s/Higinio Gamez

II. Causes of Action Against DART . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

III. Summary Judgment Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

IV. Summary Judgment Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

V. Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

C. Official Capacity Claims Against Branch . . . . . . . . . . . . . . . . . . . . . . . . . 15

D. The Right to Photograph Emergency Medical Activity was not Clearly

2. The DART Police Photography Policy is not the Equivalent of a

Fourth Amendment Claims Against DART . . . . . . . . . . . . . . . . . . . . . . . . . 19

B. Branch had sufficient probable cause to arrest Adelman for criminal

C. No excessive force was used against Adelman. . . . . . . . . . . . . . . . . . . . . . . 28

No DART Policy or Policymaker was the Moving Force Behind any

Punitive Damage Claims Against DART . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

The Court Should Deny Adelmans Request for Permanent Injunction. . 40

DARTS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE i

Abbott v. Equity Group, Inc.

DARTS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE ii

DARTS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE iii

DARTS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE iv

Statutes and Rules

DARTS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE v

DARTS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE vi

TO THE HONORABLE UNITED STATES DISTRICT COURT:

in Support of its Motion for Summary Judgment, filed contemporaneously herein.

On Tuesday, February 9, 2016 at approximately 8:00 p.m., Plaintiff Avi Adelman

Lamar in downtown Dallas that is owned and maintained by DART.

DEFENDANTS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE 1

criminal trespass under Texas Penal Code 30.05.

and DART Officer D. Flemings (Flemmings):

Branch- Im talking to my supervisor

Branch - Let me see your ID

Branch- let me see your Texas ID

Branch- No its not this is DART property.

DARTS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE 2

Branch- No.... you cannot take pictures of him

Branch- No ...ok look we gonna do something totally different...Sir leave ...

Branch- Leave....leave...alright .... stop ...we gonna do something different

Branch- I got one resisting ...

Branch- Stop...Have a seat...have a seat...have a seat...

Branch- Not of someone getting medical treatment

Branch- Give me your ID before you leave

Branch- Cause I'm asking you to give it to me ...

Branch- I'm detaining you...

Branch- Cause I asked you to leave...you're refusing to give me identification

Adelman- What is the arrest for....

Adelman- For what?

Adelman- I dont have to leave, its public property

Adelman- I can stay and take pictures ok Ill give you my ID

Branch- And I asked you to leave DART property

(DART App., p. 63-67; p. 85).

Branch-Sir leave, Sir, Sir you need to leave

DARTS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE 4

Branch-Im talking to my supervisor

Branch-Let me see you ID

Branch-Not if someone is getting medical treatment

Branch-Yes, and I told you to leave

Branch-Im identified by my badge number

Branch-Give me your ID before you leave

Branch-Yes Im detaining you

Branch-Im detaining you

Branch-Because I told you to leave