United States District Court

NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

AVI s. ADELMAN,
Plaintiff,

v. CASE NO. 3:16-cv-2579-S

DALLAS AREA RAPID TRANSIT and
STEPHANIE BRANCH,
Defendants.



MEMORANDUM OPINION AND ORDER

This Order addresses Defendant Stephanie Branch?s (?Branch?) Motion for Summary
Judgment No. 45], Defendant Dallas Area Rapid Transit?s Motion for Summary
Judgment No. 48], and Plaintiff Avi S. Adelman?s (?Adelman?) Motion for Partial Summary
Judgment No. 51]. For the reasons stated below, the Court grants in part and denies in part
Branch?s motion, grants in part and denies in part motion, and denies Adelman?s motion
in its entirety.

I. BACKGROUND

Per Special Order 3-313, this case was transferred from the docket of Judge Jane J. Boyle
to the docket ofthis Court on March 8, 2018.

Plaintiff Adelman is a freelance journalist and has worked in journalism for many years.
P1.?s Br. 2. His work includes publishing a neighborhood blo and providing photographs to media
outlets. 1d. As a freelance journalist, Adelrnan regularly takes photographs of crime scenes and

medical scenes to use on his own website or social media accounts or to sell to other media outlets.

Id. at 2-3.

 

 

On February 9, 2016, Adelrnan states that he was listening to his police scanner and heard
a call for Dallas Fire Rescue to respond to a K2 overdose victim at Rosa Parks
Plaza 1d. at 3. Adelman claims that went to RPP and noticed a man lying on the ground
being attended to by DF paramedics. Id. He then began to photograph the scene. Id. According
to Adelman, a uniformed DART police of?cer, Defendant Branch, noticed Adelman taking
photographs and positioned herself between Adelman and the medical scene. 1d. at 4. Branch?s
digital voice recorder and Adelrnan?s Video camera captured the exchange between Branch and
Adelman. Def. Br. 2~7. Branch claims she approached Adelman and asked him to stop
photographing because of the perimeter she established for the incident and because she believed
that HIPAA applied in the situation. Id. at 2. According to the transcripts, Branch asked Adelman
to leave DART property nine times and for his identi?cation four times. 1d. at 2-7. Adelman
alleges that he insisted that he was within his constitutional rights, and refused to leave or give
Adelnian his identi?cation. Pl.?s Br. 6.

Branch subsequently arrested Adelman for criminal trespass under Penal Code 30.05.
Def. Br. 7. According to Adelman, he spent 20 hours in jail before he was released after
posting bail. Pl.?s Br. 7.

On February 12, 2016, DART Chief of Police James Spiller (?Spiller?) initiated an internal
affairs investigation of Adelman?s arrest because Branch?s audio recording indicated the reason
she made contact with Adelman was due to him taking pictures of a person receiving medical
treatment by DF R. Def. Br. 7. On February 16, 2016, Chief Spiller wrote a letter to
Adelnian informing him that 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

directives. . .Although the officer?s actions appear to be within her authority, they are not in line

with the department directives concerning photography on DART property.? Id. at 8 (quoting Def.
App. 83).

DART also conducted a formal review, concluding, ?There is suf?cient 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.? Id. at 8 (quoting Def.
App. 9-10). DART also found that Branch made 23 false or inaccurate statements in her
incident report, including her statement that Adelman was within a few feet of DFR paramedics
and that DFR instructed her to keep Adelman back. P1.?s Br. 9 (citing P1.?s App. 54-57). Based
on the findings of the formal review, DART Lieutenant Lindsay recommended that Branch be
terminated; Spiller, however, rejected the recommendation and instead decided to suspend Branch
for three days. Id. (citing Pl.?s App. 68).

Adelman filed suit against DART and Branch on September 8, 2016, alleging violations of
his First, Fourth, and Fourteenth Amendment rights.

II. LEGAL STANDARD

Courts ?shall grant summary judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.? FED. R. CIV. P.
56(a); Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 247 (1986). In making this determination,
courts must view all evidence and draw all reasonable inferences in the light most favorable to the
party opposing the motion. United States v. Dieboid, Inc, 369 U.S. 654, 655 (1962). The moving
party bears the initial burden of informing the court of the basis for its belief that there is no genuine
issue for trial. Celotex Corp. v. Garrett, 477 U.S. 317, 323 (1986).

When a party bears the burden of proof on an issue, he ?must establish beyond peradventure

all of the essential elements of the claim or defense to warrant judgment in his favor.? Fontenot

v. Upjohn Co, 780 F.2d 1190, 1194 (5th Cir. 1986). When the nonrnovant bears the burden of
proof, the movant may demonstrate entitlement to summary judgment either by submitting
evidence that negates the existence of an essential element of the nonmovant?s claim or affirmative
defense, or (2) arguing that there is no evidence to support an essential element of the nonmovant?s
claim or affirmative defense. Celotex, 477 US. at 322?25. Once the movant has made this
showing, the burden shifts to the nonmovant to establish that there is a genuine issue of material
fact so that a reasonable jury might return a verdict in its favor. Marsushita Elec. Indus. Co. v.
Zenith Radio Corp, 475 US. 574, 586?87 (1986). Moreover, ?[c]onclusory allegations,
speculation, and unsubstantiated assertions? will not suffice to satisfy the nonmovant?s burden.
Douglass v. United Servs. Auto. Ass 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). Indeed,
factual controversies are resolved in favor of the nonmoving party ??only when an actual
controversy exists, that is, when both parties have submitted evidence of contradictory facts.m
Olabisiomotosho v. City of Hons, 185 F.3d 521, 525 (5th Cir. 1999) (quoting McCallum
Highlands, Ltd. v. Washington Capirai Dus, Inc, 66 F.3d 89, 92 (5th Cir. 1995)).
ANALYSIS

Only the following summary judgment issues remain for the Court to resolve. Branch
moves for summary judgment on (1), (2), and (3). DART moves for summary judgment on (4)
and (5). Adelman seeks partial summary judgment on (2), (4), and (5).

(1) Whether Branch is individually liable under 1983 for violating Adelman?s First
Amendment rights.

(2) Whether Branch is individually liable under 1983 for violating Adelman?s Fourth
Amendment rights.

(3) Whether Adelrnan is entitled to punitive damages against Branch based on her
alleged violations of his constitutional rights.

(4) Whether DART is liable for violating Adelman?s First and Fourth Amendment
rights.

(5) Whether Adelman is entitled to a permanent injunction enjoining the enforcement
of Code of Conduct.

A. Claims against Branch

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) (quoting 42 U.S.C. 1983). Section 1983 does not
create any substantive rights, it simply provides a remedy for the rights designated therein. 1d.
Therefore, an underlying constitutional or statutory violation is a predicate to liability under 
1983. Id.

(1) Violations of First Amendment Rights

The First Amendment of the US. Constitution provides, in relevant part, that the
government ?shall make no law . . . abridging the freedom of speech, or of the press.? U.S. CONST.
amend. I. The First Amendment protects freedom of speech and freedom of the press, which the
Supreme Conlt has long interpreted to include ?an undoubted right to gather news from any source
by means within the law.? Houchz'ns v. KQED, Inc, 438 US. 1, 11 (1978).

Adelman alleges that Branch arrested him for exercising his right to photograph the
emergency medical scene in violation of his First Amendment rights. Adelman claims that the
evidence establishes that Branch approachedm?and ultimately arrestedwhirn because had a
camera,? and policy states that [of?cers] can investigate, [officers] can initiate contact.?

Pl.?s Resp. 5. Branch relies on the defense of quali?ed immunity.

The doctrine of quali?ed immunity protects government of?cials from civil damages
liability when their actions could reasonably have been believed to be legal. Morgan 1). Swanson,
659 F.3d 359, 370 (5th Cir. 2011). When a defendant raises a quali?ed immunity defense, the
plaintiff has the burden of demonstrating the inapplicability of that defense. Cantreil v. City of
Murphy, 666 F.3d 911, 918 (5th Cir. 2012). To meet this burden, the plaintiffmust show that
the of?cial violated a statutory constitutional right, and (2) that the right was ?clearly established?
at the time of the challenged conduct.? Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013)
(quoting Ashcroft v. al-Kidd, 563 US. 731, 735 (2011)).

For a right to be clearly established, ?[t]he contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing violates that right.? Anderson v.
Creighton, 483 US. 635, 640 (1987). Therefore, the right must already be clearly established at
the time of the challenged conduct. Lane v. Franks, 134 S. Ct. 2369, 2381 (2014). When
considering whether a defendant is entitled to quali?ed immunity, the Court ?must ask whether
the law so clearly and unambiguously prohibited his conduct that ?every reasonable of?cial would
understand that what he is doing violates [the Morgan, 659 F.3d at 371 (alteration in
original) (quoting ail-Kidd, 563 U.S. at 741).

In her motion for summary judgment, Branch argues that the First Amendment right to
film the police or by reasonable extension to photograph emergency medical activity, as Adelman
was doing, was not clearly established at the time of Adelman?s arrest in 2016. Therefore, Branch
contends that Adelman cannot satisfy his burden of establishing that Branch is not entitled to
qualified immunity. In support of her argument, Branch relies on the Fifth Circuit?s holding in

Turner v. Lt. Driver. 848 F.3d 678 (5th Cir. 2017)

On February 16, 2017, the Fifth Circuit issued the Turner decision, which upheld a district
court?s dismissal of a 1983 freedom of speech claim in a police filming incident on the basis of
quali?ed immunity. Id. In Turner, the plaintiff filmed the Fort Worth police station from a public
sidewalk and was detained for questioning after refusing to identify himself. Id. at 68384. The
plaintiff was handcuffed, placed in the back of a patrol car, and eventually released. Id. The
plaintiff sued the police officers who detained him, alleging violations of his First, Fourth, and
Fourteenth Amendment rights under 1983. Id. at 684. The defendants moved to dismiss,
asserting a quali?ed immunity defense, and the district court granted the motions. Id.

In reviewing the case on appeal, the Fifth Circuit ultimately concluded, ?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. at 686. The Fifth Circuit
explained:

We cannot say, however, that ?existing precedent . . . placed the . . . constitutional

question beyond debate? when Turner recorded the police station. Neither does it

seem that the law ?so clearly and unambiguously prohibited [the officers?] conduct

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 Turner?s activities. All three officers are entitled to

quali?ed immunity on Turner?s First Amendment claim.

Id. at 687 (citations omitted). The Fifth Circuit also held that, though the right to ?lm the police
was not clearly established at the time of Turner?s arrest in 2015, it has been established as of
February 16, 2017. Id. at 687-88.

The Court finds the facts in the instant case to be analogous to the facts in Turner. Even

Adelman ?acknowledges that Turner would likely preclude his First Amendment claim against

Branch if this case involved photographing police activity.? Pl.?s Resp. 6. Adelman attempts to

distinguish this case from Turner, arguing that he was not arrested for recording police activity

 

like the defendant in Turner. However, in his own motion for partial summary judgment, Adelman
argues, ?Turner involved nearly identical facts to those here.? Pl.?s Br. 25.

The Court ?nds that the holding in Turner applies to the case at hand. At the time that
Adelman was arrested for photographing a medical scene attended to by DFR paramedics and
DART police, the right to photograph police was not clearly established. Therefore, Branch may
assert a defense of quali?ed immunity. Branch?s motion for summary judgment is granted as to
Adelman?s First Amendment claim against her in her individual capacity.

(2) Violation of Fourth Amendment Rights

Both Branch and Adelman move for summary judgment on the question of Of?cer
Branch?s liability pursuant to 1983 for allegedly violating Adelman?s Fourth Amendment rights.
However, the evidence demonstrates at least a fact issue regarding the element of reasonableness
of Branch?s arrest of Adelman. Therefore, both Branch?s motion for summary judgment and
Adelman?s motion for summary judgment are denied as to Adelman?s Fourth Amendment claim
against Branch in her individual capacity.

(3) Punitive Damages

Branch moves for summary judgment on the issue of whether Adelman is entitled to
punitive damages against her based on her alleged violations of his constitutional rights. Punitive
damages, however, necessarily involve a question of Branch?s subjective motivation and intent,
and ?summary judgment is rarely proper when an issue of intent is involved.? Guittory v. Domtar
Indus. Inc, 95 F.3d 1320, 1326 (5th Cir. 1996).

The Court ?nds Adelman?s claims for punitive damages against Branch to be weak based

on the evidence before the Court. Regardless, there is a fact issue to be resolved by the jury on

 

Branch?s subjective motivation and intent. Therefore, Branch?s motion for summary judgment as
to the issue of punitive damages is denied.
B. Claims against DART
(I) Violations of First and Fourth Amendment Rights

A municipal entity may also be held liable under 1983 for violating a person?s
constitutional rights. Monefl v. Dep?t ofSoc. Serra, 436 US. 658, 690?91 (1978). ?[M]unicipal
liability under section 1983 requires proof of three elements: a policymaker; an of?cial policy; and
a violation of constitutional rights whose ?moving force? is the policy or custom.? Piotr-'owski v.
City ofHous., 233 F.3d 567, 578 (5th Cir. 2001) (citing Monell, 436 US. at 694). Unlike Branch,
DART cannot assert a defense of quali?ed immunity because ?[m]unicipalities and of?cers in
their of?cial capacity . . . have no . . . right to be free from suit? under the doctrine of quali?ed
immunity. Zamow v. City of Wichita 500 F.3d 401, 406 (5th Cir. 2007); accord Owen v.
City oflndopendence, 445 US. 622, 638 (1980) (holding that quali?ed immunity defense is not
available to municipal defendants).

DART and Adelman both move for summary judgment on whether DART is liable for
violations of Adelman?s constitutional rights. However, the Court finds that there is a genuine
dispute of material fact as to whether or not DART is liable for allegedly violating Adelman?s First
and Fourth Amendment rights. Therefore, both and Adelman?s motions for summary
judgment on this point are denied.

(2) Permanent Injunction

Adelman seeks a permanent injunction prohibiting DART from enforcing its Code of

Conduct as a basis to arrest a person exercising his or her First Amendment rights. 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. Hoffand Am. Ins. Co. v. Succession
ofRoy, 777 F.2d 992, 997 (5th Cir. 1985). To succeed in obtaining 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) the threatened injury to
the plaintiff outweighs any damage the injunction might cause to the opponent; and (4) the
injunction will not disserve the public interest. Villas at Parkside Partners v. City of Farmers
Branch, 701 F. Supp. 2d 835, 859 (ND. 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 Court?s
discretion. Lemon 1). Kurtzman, 411 US. 192, 200-01 (1973).

The Court ?nds that Adelman has failed to carry his burden of persuasion on at least three
of the four elements: (1) a substantial likelihood of success on the merits; (2) substantial threat of
irreparable injury if the injunction does not issue; and (3) the threatened injury to the plaintiff
outweighs any damage the injunction might cause to the opponent. Therefore, the Court declines
to issue a permanent injunction enjoining Code of Conduct. On this point, 
motion for summary judgment is granted and Adelman?s motion for summary judgment is denied.

IV. CONCLUSION

For the foregoing reasons, the Court grants in part and denies in part Branch?s Motion for
Summary Judgment No. 45], grants in part and denies in part 3 Motion for Summary
Judgment No. 48], and denies Adelman?s Motion for Partial Summary Judgment in its

entirety No. 51].

 

 

SO ORDERED.

SIGNED July   2018.

 iwm

 

 

KAREN GREN SCHOLER
UNITED STATES DISTRICT JUDGE