MSJ Adelman Brief (Filed)

Case 3:16-cv-02579-B Document 52 Filed 09/15/17 Page 1 of 39 PageID 1090
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.
PLAINTIFFS BRIEF IN SUPPORT OF HIS

MOTION FOR PARTIAL SUMMARY JUDGMENT
Tyler J. Bexley
State Bar No. 24073923
REESE GORDON MARKETOS LLP
750 N. Saint Paul St., Suite 600
Dallas, Texas 75201-3201
214.382.9810 telephone
214.501.0731 facsimile
tyler.bexley@rgmfirm.com
ATTORNEY FOR PLAINTIFF

TABLE OF CONTENTS
Page
INTRODUCTION ........................................................................................................... 1
STATEMENT OF FACTS ................................................................................................ 2
I. Avi Adelmans Background .................................................................................... 2
II. February 9, 2016 Arrest ......................................................................................... 3
III. The Aftermath and Investigation ............................................................................ 7
ARGUMENT ................................................................................................................. 10
I. The Court should grant summary judgment on Officer Branchs liability

pursuant to 1983 for violating Adelmans Fourth Amendment rights................ 10
A. Officer Branch, acting under color of state law, violated Adelmans

Fourth Amendment right to be free from arrest without probable cause ... 11
B. Officer Branch is not entitled to qualified immunity from Adelmans

Fourth Amendment claim .......................................................................... 16
II. The Court should grant summary judgment on DARTs liability pursuant
to 1983 for violating Adelmans First, Fourth, and Fourteenth Amendment
rights .................................................................................................................... 21
A. Adelman was arrested pursuant to an official policy adopted by the

DART Board of Directors ......................................................................... 22
B. This DART policy was the moving force that led to the violation of
Adelmans First and Fourth Amendment rights ......................................... 23
1. Adelmans arrest pursuant to DARTs Code of Conduct was a

violation of his First Amendment rights .......................................... 24

violation of his Fourth Amendment rights ...................................... 29
III. The Court should grant summary judgment on Adelmans Application for
Permanent Injunction and enjoin DART from enforcing its Code of Conduct
to prohibit photography on DART property ........................................................ 30
CONCLUSION .............................................................................................................. 33
TABLE OF AUTHORITIES
Page(s)
CASES
ACLU v. Alvarez,
679 F.3d 583 (7th Cir. 2012) ......................................................................... 21, 26
Anderson v. Creighton,
483 U.S. 635 (1987) ............................................................................................. 18
Anthony v. State,
209 S.W.3d 296 (Tex. App.Texarkana 2006, no pet.) ................................ 15, 31
Bd. of Airport Commrs of City of Los Angeles v. Jews for Jesus, Inc.,
482 U.S. 569 (1987) ............................................................................................. 32
Branzburg v. Hayes,
408 U.S. 665 (1972) ............................................................................................. 25
Camara v. Mun. Court of City & Cnty. of San Francisco,

387 U.S. 523 (1967) ............................................................................................. 29
Club Retro, LLC v. Hilton,

568 F.3d 181 (5th Cir. 2009) ............................................................................... 17
Connell v. Town of Hudson,

733 F. Supp. 465 (D.N.H. 1990) ................................................................... 20, 26
Cox Broad. Corp. v. Cohn,

420 U.S. 469 (1975) ............................................................................................. 19
Dallas Assn of Cmty. Orgs. for Reform Now v. Dallas Cnty. Hosp. Dist.,
670 F.2d 629 (5th Cir. Unit A 1982) ............................................................. 15, 31
Dickson v. Am. Red Cross Natl Headquarters,

No. 3:95CV2391P, 1997 WL 118415 (N.D. Tex. Mar. 10, 1997) ................. 19
Edwards v. Dallas Area Rapid Transit,

No. 3:14cv417P, 2014 WL 5824550 (N.D. Tex. Nov. 10, 2014) ................... 21
Fields v. City of Philadelphia,

862 F.3d 353 (3d Cir. 2017) .............................................................. 21, 26, 28, 33
First Natl Bank of Boston v. Bellotii,

435 U.S. 765 (1978) ............................................................................................. 25
Fontenot v. Upjohn Co.,

780 F.2d 1190 (5th Cir. 1986). ............................................................................ 10
Gerstein v. Pugh,
420 U.S. 103 (1975) ................................................................................. 11, 17, 29
Gilk v. Cunniffe,
655 F.3d 78 (1st Cir. 2011) ..................................................................... 21, 26, 27
Heath v. Playboy Enters., Inc.,

732 F. Supp. 1145 (S.D. Fla. 1990) ...................................................................... 20
Houchins v. KQED, Inc.,

438 U.S. 1 (1978) ................................................................................................. 25
Jamison v. City of St. Louis,

828 F.2d 1280 (8th Cir. 1987) ............................................................................. 33
Kennedy v. City of Cincinnati,

595 F.3d 327 (6th Cir. 2009) ............................................................................... 15
LeMaire v. La. Dept. of Transp. & Dev.,

480 F.3d 383 (5th Cir. 2007) ............................................................................... 10
Local 32B-32J Serv. Employees Intl Union, AFL-CIO v. Port Authority of NY & NJ,
3 F. Supp. 2d 413 (S.D.N.Y. 1998) ...................................................................... 33
Lyons v. Folsom Mercy Hosp.,

No. 2:11cv0268 GEB KJN P, 2013 WL 2318989 (E.D. Cal. May 28, 2013) ... 19
McClendon v. City of Columbia,

305 F.3d 314 (5th Cir. 2002) ............................................................................... 11
Meadowbriar Home for Children, Inc. v. Gunn,

81 F.3d 521 (5th Cir. 1996) ................................................................................. 26
Monell v. Dept of Soc. Servs.,

436 U.S. 658 (1978) ............................................................................................. 21
Morgan v. Swanson,
659 F.3d 359 (5th Cir. 2011) ............................................................................... 16
Owen v. City of Independence,

445 U.S. 622 (1980) ............................................................................................. 21
Piotrowski v. City of Houston,

233 F.3d 567 (5th Cir. 2001) ............................................................................... 21
Reed v. Town of Gilbert,

-- U.S. --, 135 S. Ct. 2218 (2015) ......................................................................... 24
Sanchez v. City of Austin,

No. A-11-CV-993-LY (W.D. Tex. Sept. 27, 2012) ............................................... 31
Shuttlesworth v. City of Birmingham,

394 U.S. 147 (1969) ............................................................................................. 31
Smith v. City of Cumming,

212 F.3d 1332 (11th Cir. 2000) ........................................................................... 26
Turner v. Lieutenant Driver,

848 F.3d 678 (5th Cir. 2017) ................................. 1, 12, 15, 17, 25, 26, 27, 32, 33
United States v. Abdallah,

629 F. Supp. 2d 699 (S.D. Tex. 2009) .................................................................. 19
Zarnow v. City of Wichita Falls,

500 F.3d 401 (5th Cir. 2007) ............................................................................... 21
STATUTES AND OTHER SOURCES
FED. R. CIV. P. 56(a) ....................................................................................................... 10
Restatement (Second) of Torts 625B ............................................................................ 19
U.S. CONST. Amend. I ..................................................................................................... 24
U.S. CONST. Amend. IV .................................................................................................. 11

Pursuant to Federal Rule of Civil Procedure 56, Plaintiff Avi S. Adelman
respectfully requests that the Court enter summary judgment on the claims asserted in
Plaintiffs Complaint in Count II (liability only), Count III (liability only), and the
Application for Permanent Injunction.
INTRODUCTION
This case is about the constitutional rights to freedom of speech, freedom of the
press, and freedom from unlawful arrest. On February 9, 2016, Dallas Area Rapid
Transit (DART) and Officer Stephanie Branch violated these fundamental constitutional
rights when Officer Branch arrested Avi Adelman without probable cause and jailed him
overnight, all because Adelman was exercising his First Amendment right to take
photographs in public.
These facts are largely undisputedDARTs own internal investigation confirmed
that Officer Branch did not establish probable cause to effect the arrest of Adelman,
and DARTs police chief and corporate representative admitted that Officer Branchs
arrest of Mr. Adelman was an illegal arrest without probable cause. (App. 50; App. 33,
Spiller Dep. 114:25-115:9.) Faced with this lawsuit, however, DART and Officer Branch
have attempted to rewrite the facts and have invoked doctrines of immunity to protect
themselves from liability. But the law does not support their defenses. The right to be
free from arrest without probable cause has been recognized for decades, and the Fifth
Circuit just recently confirmed that the First Amendment protects the right to record
police. Turner v. Lieutenant Driver, 848 F.3d 678, 690 (5th Cir. 2017). Officer Branch
and DART violated these fundamental rights, and Adelman brings this lawsuit to hold
1
them accountable and to prevent DART from violating other citizens constitutional
rights in the future.
Adelman seeks partial summary judgment as follows:
1. On Count II, a finding that Officer Branch violated Adelmans Fourth

Amendment rights by arresting Adelman without probable cause, as
DARTs own internal investigation found and the evidence confirms;
2. On Count III, a finding that DART violated Adelmans First and Fourth
Amendment rights by adopting and enforcing a Code of Conduct that
permits DART police officers to give criminal trespass warnings and make
arrests of individuals on DART property for any non-transportation
purpose, including photography and other expressive activity; and
3. A permanent injunction prohibiting DART from enforcing its Code of

Conduct to prevent photography and other expressive activity in violation
of the First Amendment.
STATEMENT OF FACTS
I. Avi Adelmans Background
Adelman is a freelance journalist and has worked in journalism for many years,
including publishing a neighborhood blog and providing photographs to media outlets.
(App. 3-4, Adelman Decl. 2-3.) He has been a professional photographer for nearly
30 years, during which time he has held a Secret Service clearance, a Dallas Police
Department press credential, and a Department of Defense clearance. (Id. 3.) Adelman
is a member of the National Press Photographers Association (NPPA) and Society for
Professional Journalists (SPJ), organizations that promote professional photography and
journalism. (Id. 4.) In that capacity, he has organized programs about the right to
photograph and record in public, including training for law enforcement officers and
managing a website relating to the right to photograph. (Id.) As a freelance journalist
and photographer, Adelman regularly takes photographs of crime scenes and medical
2
scenes to use on his own websites or social media accounts or to sell to other media
outlets. (Id. 2.)
II. The February 9, 2016 Arrest
On February 9, 2016, Adelman was in downtown Dallas, when he decided to
listen to his police scanner, as he often does to stay informed of police activity for
purposes of a crime watch website he maintained and to learn about potential
photography opportunities. (Id. 5.) Around 8:00 p.m., Adelman heard a call for Dallas
Fire-Rescue (DFR) paramedics to respond to a K2 overdose victim at DARTs Rosa Parks
Plaza and decided to go to the scene. (Id. 6.) When he arrived, he noticed a man lying
on the ground and being attended to by DFR paramedics. (Id.) Believing that the
incident might be of public interest (particularly given that the K2 epidemic had been in
the news recently), Adelman began to photograph the scene. (Id.) The following
photograph, taken by Adelman, depicts the scene as it looked when he first arrived:
ASA-000972
(App. 9.)
3
Shortly after Adelman began photographing, a uniformed DART police officer
(whom he would later discover to be Officer Stephanie Branch) noticed him taking
photographs and appeared to be agitated. (App. 5, Adelman Decl. 7.) The following
photograph depicts the approximate time when Officer Branch first noticed Adelman
taking photographs:
ASA-001014
(App. 11.) After noticing Adelman taking photographs, Officer Branch positioned herself
between Adelman and the medical scene in an apparent attempt to block Adelman from
taking photographs. (App. 5-6, Adelman Decl. 8; App. 12 (video depicting Officer
Branch blocking Adelman).) Each time Adelman relocated, Officer Branch moved to
continue obstructing his ability to photograph. (Id.)
During this entire situation (as is clear from the photographs and video), Adelman
was several feet clear of the medical scene and was not interfering with paramedics or
police activity. (See App. 58, 61 (statements by the two other DART police officers at the
4
scene, one stating that Adelman did not come any closer than 15 to 20 feet from the
scene and the other stating that Adelman was approximately 15ft away taking
pictures; App. 45 (DART internal affairs report concluding that Adelman is never
viewed less than approximately 10 feet from the actual medical scene and was not
observed by DART or DFR personnel to be interfer[ing] with medical treatment or
medical personnel).) Additionally, no one else at the medical sceneneither the other
DART police officers nor DFR paramedicsappeared to be concerned about Adelmans
presence. (App. 6, Adelman Decl. 9; see also App. 66-67 (DFR official statement that
at no point were any requests made [by the DFR paramedics] to ask Mr. Adelman to
leave the scene and/or stop taking pictures).)
Although Adelman was not interfering with the paramedics and was nowhere close
to the medical scene, Officer Branch approached him and demanded that he stop taking
photographs. (App. 6, Adelman Decl. 10.) As captured on Officer Branchs audio
recording device (and subsequently transcribed by DART for its internal affairs
investigation), the first statement Officer Branch made to Adelman was, Sir leave.
(App. 69.) When Adelman declined to leave the public space, Officer Branch then
demanded his identification. (Id.) Next, she again demanded that Adelman leave our
property and told Adelman that Rosa Parks Plaza was not public property (which
DARTs corporate representative would later contradict in his deposition). (Compare id.
(Officer Branch telling Adelman that Rosa Parks Plaza is not public property), with App.
40, Lyons Dep. at 143:1-2 (testifying that DART stations are public property).) Officer
Branch then told Adelman several times that he could not take photographsfirst,
5
because it was a medical scene, then later changing her instruction to tell Adelman that he
could take pictures from the street but you cannot take pictures here on DART
property. (App. 70.) Adelman, knowing that no law prevented him from photographing
a public medical scene and that he had the right to photograph so long as he stayed a safe
distance from the scene, insisted that he was well within his constitutional rights. (Id.;
App. 6, Adelman Decl. 10.)
Nevertheless, Officer Branch continued to unlawfully demand that Adelman stop
taking photographs and leave the area. (App. 69-70.) While Officer Branch was
harassing Adelman, her colleague, DART Police Officer Cannon, remained with DFR
paramedics. As Officer Cannon and the DFR paramedics observed Officer Branchs
confrontation with Adelman, a DART recording device captured the following
conversation:
DFR 1 He was just taking pictures right?

Officer Cannon Yea[h] thats why I dont know why shes giving him a
hard time[.]
DFR-1 Why is she going crazy?
Officer Cannon I dont know[,] thats going to be on her[.] [H]e can take
all the pictures he wants[,] thats why Im not getting involved in that. . . .
DFR-1 He knows he wasnt doing nothing wrong so. . . .
....
Officer Cannon I dont know why she . . . .
Officer Cannon There was no need for that[.]
DFR-2 Yea[h] I dont know where that idea came from but this is . . .
because there is freedom of the press[.]
(App. 76-77.)
6
Apparently disagreeing with her police and DFR colleagues, Officer Branch
informed Adelman that she was detaining him, less than five minutes after first
approaching him and demanding that he stop taking photographs. (App. 70; App. 6,
Adelman Decl. 11.) Officer Branch subsequently arrested Adelman for criminal
trespass, based on her incorrect assertion that Rosa Parks Plaza was not public
property and her belief that Adelman was not allowed to photograph the medical scene.
(App. 69-72.) Adelman was also issued a criminal trespass warning, which banned him
from Rosa Parks Plaza and certain other DART transit locations. (App. 92.) As Officer
Branch would later testify in her deposition, she arrested Adelman and issued the trespass
warning pursuant to DARTs Code of Conduct, a policy adopted by the DART Board of
Directors that permits police officers to arrest individuals who are present at a DART
facility for non-transportation purposes, including photography and other expressive
activity. (App. 18, Branch Dep. at 230:14-231:2; App. 90-91.)
Officer Branch placed Adelman in double-lock handcuffs, placed him in a squad
car, and transported him to Lew Sterrett Justice Center, where he was placed in the
general jail population. (App. 6-7, Adelman Decl. 11; App. 93.) Adelman posted bond
the following morning and was finally released after more than 20 hours in custody.
(App. 6-7, Adelman Decl. 11.) Prior to this incident, Adelman had never been jailed,
arrested, or cited for any offense other than minor traffic violations. (Id.)
III. The Aftermath and Investigation
In the immediate aftermath, several news outlets, including the Dallas Morning
News and Dallas Observer, ran stories about the arrest. (App. 96-101.) Less than 24
7
hours after the arrest, DART spokesman Morgan Lyons defended Officer Branch in his
statements to these media outlets, stating that DART reviewed the exchange and believes
the officers acted properly. (App. 106.) According to Lyons, Dallas Fire-Rescue asked
[Adelman] to move. He refused. Paramedics asked us to ask him to move several times.
He failed to comply and thats why he was arrested. (Id.) DFR, however, issued an
official statement disputing DARTs version of the story: At no point were any requests
made to ask Mr. Adelman to leave the scene and/or stop taking pictures. In addition,
there were no requests made to [DART] officers to ask him to leave the scene and/or stop
taking pictures. (App. 66-67.) At his deposition, Lyons refused to take responsibility
for his false statements to the media, and when asked 11 times under oath whether he had
apologized or would apologize to Adelman, refused to even answer the question. (App.
36-39, Lyons Dep. at 17:16-19:22, 128:20-130:21.)
On February 16, 2016, DART, apparently realizing that it could no longer defend
the unconstitutional arrest of Adelman, dropped the criminal trespass charge. (App. 94.)
DART did not apologize or even acknowledge any wrongdoing in its letter explaining the
decision to drop the charge, simply stating that Officer Branchs actions were not in line
with department directives and that DART would undertake a formal review. (Id.)
After nearly six months, DART released the findings of its formal review. DARTs
investigation concluded that Officer Branch violated Adelmans constitutional rights,
finding that she did not establish Probable Cause to effect the arrest and improperly
arrested Adelman while he was simply taking photographs of a person in a public
place. (App. 47-48.) The report also contained the following findings and conclusions:
8
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. . . . [T]herefore the arrest of
Adelman for criminal trespass was not based on sufficient probable cause.
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 than 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.
The evidence indicates that Officer Branch did violate the DART
Administrative Employment Manual and did not refrain from activity
which was illegal or could reflect negatively on DART when she made
various inconsistent or mistaken statements on her DART Police [I]ncident
Report . . . and made the arrest of Avi Adelman for criminal trespass.
(App. 47-53.)
DART also concluded that Officer Branch made numerous false 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. (App. 54-57.)
According to DART, [t]his statement has been denied by DFR personnel and by Officers
Craig and Cannon. This statement is not heard or viewed on any video or audio
recordings taken from the scene. (App. 54.) In fact, DART concluded that Officer
Branchs incident report contained 23 false or inaccurate statements. (App. 54-57.)
Based on the findings of the internal affairs investigation, DART Lieutenant
Lindsey recommended that Officer Branch be terminated from her employment with
DART. (App. 68.) But DART Police Chief James Spiller rejected this recommendation,
instead deciding to suspend Officer Branch for just three days. (Id.) Immediately
following her suspension, DART put Officer Branch back into the police force, despite
9
having found that Officer Branch arrested Adelman without probable cause, violated
several DART policies, and made 23 false statements in her incident report.
ARGUMENT
Under Rule 56, summary judgment is appropriate 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). Although the facts and evidence must be taken in
the light most favorable to the non-movant . . ., the non-movant must go beyond the
pleadings and come forward with specific facts indicating a genuine issue for trial.
LeMaire v. La. Dept. of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007). When a
plaintiff moves for summary judgment on a claim, he must establish the essential elements
of the claim and negate any defenses. Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th
Cir. 1986).
For the reasons set forth below, Adelman is entitled to summary judgment against
Officer Branch for violating his Fourth Amendment rights and against DART for
violating his First and Fourth Amendment rights. He also is entitled to a permanent
injunction prohibiting DART from enforcing its unconstitutional Code of Conduct.
I. The Court should grant summary judgment on Officer Branchs liability pursuant
to 1983 for violating Adelmans Fourth Amendment rights.
Section 1983 provides a private cause of action to any United States citizen whose
rights are violated by a person acting under color of state law. 42 U.S.C. 1983. To
succeed on a 1983 claim, a plaintiff must establish (1) that the defendant committed a
violation of rights under color of state law; and (2) that the defendant is not entitled to
qualified immunity. McClendon v. City of Columbia, 305 F.3d 314, 32223 (5th Cir.
10
2002). Here, the evidence establishes that Officer Branch violated Adelmans Fourth
Amendment rights by arresting him without probable cause. The evidence also
establishes that Officer Branch is not entitled to qualified immunity because the rights she
violated are clearly established under the Constitution.
A. Officer Branch, acting under color of state law, violated Adelmans Fourth
Amendment right to be free from arrest without probable cause.
It is undisputed that Officer Branch was acting under color of state law when she
arrested Adelman on February 9, 2016. (App. 24, Spiller Dep. at 16:1-4.) Thus, the only
question is whether the arrest violated Adelmans Fourth Amendment rights. The
evidence establishes that it did.
The Fourth Amendment protects individuals against unreasonable searches and
seizures. U.S. CONST. Amend. IV. The Supreme Court has long interpreted this to mean
that individuals generally have a right to be free from arrest without a warrant or
probable cause. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 106 (1975). Probable cause is
an important constitutional principle [t]o implement the Fourth Amendments protection
against unfounded invasions of liberty and privacy. Id. at 112. DARTs own internal
policy on arrests without a warrant recognizes the importance of the probable cause
standard:
Short of the application of force, an arrest is the most serious action an

officer can undertake. An arrest can cause repercussions throughout a
persons life, even if eventually found not guilty or never brought to trial.
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 . . . .
(App. 81.)
11
Probable cause exists when the totality of the facts and circumstances within a
police officers knowledge at the moment of arrest are sufficient for a reasonable person
to conclude that a suspect had committed or was committing an offense. Turner, 848
F.3d at 694. Here, the incontrovertible evidence establishes that Officer Branchs arrest
of Adelman failed to meet this probable cause standard. Adelman was taking
photographs of an emergency medical scene at Rosa Parks Plaza when Officer Branch
approached him. (App. 5-6, Adelman Decl. 6-10; App. 48.) As the audio of the arrest
demonstrates, Officer Branchs first statement to Adelman was to tell him to stop taking
photographs and to leave Rosa Parks Plaza. (App. 69.) She told him several additional
times to stop taking photographs and, when he asserted his First Amendment right to
remain on public property and take photographs, she arrested him. (App. 69-72; App.
43-53.)
As DARTs internal affairs report states, during the entire process, Adelman is
viewed simply taking pictures of a person in a public place and is never viewed less
tha[n] approximately 10 feet from the actual medical scene. (App. 48.) DFR denied
that Adelman was interfering with the medical scene or that its paramedics ever asked
Officer Branch to move Adelman. (App. 47-48.) The other DART officers at the scene
also did not witness Adelman interfere with medical treatment or medical personnel.
(App. 48.) Additionally, it is undisputed that Adelman was not threatening, aggressive, or
violent in any way at the scene. (App. 43-53.) Nevertheless, Officer Branch not only
arrested Adelman, she also wrote in her incident reports that Adelman had interfered with
12
medical treatment and that DFR personnel had instructed him to movestatements that
were plainly false and have been contradicted by everyone else at the scene. (App. 54-57.)
These undisputed facts make clear that the arrest was not supported by probable
cause and violated Adelmans Fourth Amendment rights. The absence of probable cause
is confirmed by DARTs own probable cause policy, which provides an exclusive list of
the seven circumstances in which an officer is permitted to make a warrantless arrest, as
set forth in the Texas Code of Criminal Procedure:
13
(App. 82.) James Spiller, DARTs police chief and corporate representative, admitted that
Officer Branch did not have probable cause under any of the enumerated clauses in
DARTs policy. (App. 26, Spiller Dep. at 22:18-22.)
Most importantly, both Chief Spiller and DARTs internal affairs investigation
confirmed, unequivocally, that Officer Branch arrested Adelman without probable cause.
The internal affairs report made numerous findings to that effect, including the following:
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. . . . [T]herefore the arrest of
Adelman for criminal trespass was not based on sufficient probable cause.
(App. 47-48.) Chief SpillerOfficer Branchs ultimate boss and DARTs corporate
representative and police chiefalso acknowledged Officer Branchs lack of probable
cause to arrest Adelman:
Q. So its DARTs position that Officer Branch did not have probable cause to
effect the arrest of Mr. Adelman, correct? . . . . Is that DARTs position?
A. Yes.
(App. 32, Spiller Dep. at 109:24-110:5; accord id. 33, Spiller Dep. at 114:25-115:9
(agreeing that Officer Branchs arrest of Mr. Adelman was an illegal arrest without
probable cause). Thus, the uncontroverted evidence establishes that Officer Branchs
arrest of Adelman was without probable cause.
Officer Branch will likely argue that she instructed Adelman to leave Rosa Parks
Plaza several times, and his failure to do so provided probable cause to arrest him for
criminal trespass. In addition to the fact that this contradicts DARTs finding that she
lacked probable cause, this argument is based on the assumption that Officer Branch had
the authority to instruct Adelman to leave. If she had no such authority, there would be
14
no probable cause to believe that Adelman was trespassing under Texas Penal Code
30.05. See Anthony v. State, 209 S.W.3d 296, 310 (Tex. App.Texarkana 2006, no
pet.) (Because [the arresting officer] lacked authority to exclude a person from the park,
the evidence is legally insufficient to support the effective consent prong of criminal
trespass.).
Officer Branch lacked authority to order Adelman to leave because both Texas law
and the United States Constitution prohibit a police officer from arbitrarily denying a
person access to a public place. See id. at 307 ([A] police officers exercise of duties and
powers under [criminal trespass law] must be pursuant to policies and procedures that do
not violate the due process of law.); Dallas Assn of Cmty. Orgs. for Reform Now v.
Dallas Cnty. Hosp. Dist., 670 F.2d 629, 632 (5th Cir. Unit A 1982) (The First
Amendment is violated by unreasonable and unequal restrictions on access to public
property.). Indeed, [a]ny competent government official, particularly a police officer,
should have realized that he cannot deprive a person, who has not committed a crime or
violated some regulation, nor was likely to do so, of access to public grounds without due
process of law. Kennedy v. City of Cincinnati, 595 F.3d 327, 338 (6th Cir. 2009).
Earlier this year, the Fifth Circuit decided a similar case, in which police officers
attempted to justify a detention without probable cause by claiming, among other things,
that the detained individual, Turner, refused to identify himself when he was stopped for
video recording a police station. Turner, 848 F.3d at 683, 69495. The court rejected
the police officers defense and found sufficient allegations to support a Fourth
Amendment claim:
15
Turner did not make any threats against the officers, did not [attempt]
to leave or flee, and did not take any aggressive actions. The only
potential reason the officers gave Turner for arresting him that can be
gleaned from the amended complaint is Turners failure to identify himself:
He alleges that, after he was handcuffed, Grinalds told him [t]his is
what happens when you dont ID yourself. But the police cannot arrest an
individual solely for refusing to provide identification. We are satisfied that
Turner has alleged a violation of his Fourth Amendment right to be free
from unlawful arrest.
Id. at 69495.
Similar to the plaintiff in Turner, Adelman did not make any threats or take
aggressive actions, and did nothing more than decline to provide his identification or to
leave public property when he was unlawfully ordered to do so by Officer Branch.
Officer Branch cannot now defend her arrest by claiming that her unconstitutional order
for Adelman to stop taking photographs and leave Rosa Parks Plaza gave her probable
cause to arrest him for criminal trespass. Such a result would perversely incentivize police
officers to give unconstitutional commands and then to arrest individuals who fail to
follow those commands. The Court should reach the same conclusion DARTs
investigators reached in conducting their internal affairs investigation and find that
Officer Branch arrested Adelman without probable cause in violation of the Fourth
Amendment.
B. Officer Branch is not entitled to qualified immunity from Adelmans Fourth

Amendment claim.
Officer Branch has asserted that she has no liability for the unconstitutional arrest
of Adelman under the doctrine of qualified immunity. The doctrine of qualified
immunity protects government officials from civil damages liability when their actions
could reasonably have been believed to be legal. Morgan v. Swanson, 659 F.3d 359,
16
370 (5th Cir. 2011). The plaintiff in a 1983 case has the burden to negate the qualified
immunity defense by showing (1) that the official violated a statutory or constitutional
right, and (2) that the right was clearly established at the time of the challenged
conduct. Turner, 848 F.3d at 685 (citation omitted).
Adelman has satisfied the first element by showing that Officer Branch violated his
Fourth Amendment right to be free from arrest without probable cause, as set forth
above. The second element also is beyond dispute. The right to be free from arrest
without probable cause has been clearly established for decadesat least since the
Supreme Court decided Gerstein in 1975. See Gerstein, 402 U.S. at 111. As the Fifth
Circuit recognized in 2009, [t]he Fourth Amendment right to be free from false arrest
arrest without probable causewas clearly established at the time of [the] arrests. Club
Retro, LLC v. Hilton, 568 F.3d 181, 206 (5th Cir. 2009).
Although there can be no dispute that Adelman had a clearly established right to
be free from arrest without probable cause, that does not end the qualified immunity
inquiry. In addition to the clearly established prong of the qualified immunity analysis,
law enforcement officials who reasonably but mistakenly conclude that probable cause
is present are entitled to immunity. Club Retro, 568 F.3d at 206 (citations omitted).
Relying on this line of authority, Officer Branch argues that her arrest of the Plaintiff
was supported by arguable probable cause, good faith belief of arguable probable cause[,]
or reasonabl[e] mistake[] with the existence of probable cause. (Branchs Ans., Aff.
Defs. 4.) More specifically, Officer Branch contends that she mistakenly believed that
the Health Insurance Portability and Accountability Act of 1996 (HIPAA) prevented
17
Adelman from taking photographs of a medical scene and that this mistake was
reasonable. A review of the audio from the arrest undermines Officer Branchs
contention. Shortly after approaching Adelman, she told him, you can take pictures
from the street but you cannot take pictures here. (App. 70.) If Officer Branch truly
believed that HIPAA prevented Adelman from photographing the medical scene, it would
not have mattered where he was standing when he took those photographs.
Even if the Court accepts Officer Branchs HIPAA defense at face value, however,
she cannot rely on her mistaken interpretation of HIPAA to excuse her lack of probable
cause because her alleged mistake was unreasonable. In determining whether an officers
mistake can excuse the lack of probable cause to make an arrest, the court must determine
whether the officers belief of probable cause was objectively reasonable; [the officers]
subjective beliefs . . . are irrelevant. Anderson v. Creighton, 483 U.S. 635, 641 (1987).
Thus, the Court must ask not what Officer Branch believed about HIPAA at the time of
the arrest, but whether a reasonable police officer would have believed that HIPAA
prevents an individual from photographing a public medical scene. DARTs own internal
investigation already answered this question, concluding that Officer Branch lacked
probable cause because 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. (App. 47 (emphasis added).) Further, Officer
Branchs purported reliance on HIPAA is objectively unreasonable for two additional
reasons.
18
First, HIPAA applies only to a covered entity, which the Act defines specifically
as a health plan, a health care clearinghouse, or a health care provider. 45 C.F.R.
160.103, 164.508. It is well-established that neither Adelman, as a photographer, nor
Officer Branch, as a law enforcement officer, meets the definition of a covered entity
that is subject to HIPAA. See United States v. Abdallah, 629 F. Supp. 2d 699, 733 (S.D.
Tex. 2009) ([T]he FBI and other law enforcement agencies are not covered entities under
HIPAA. (collecting cases)); Lyons v. Folsom Mercy Hosp., No. 2:11cv0268 GEB KJN
P, 2013 WL 2318989, at *8 (E.D. Cal. May 28, 2013) (Because neither [Officer]
Browning, nor law enforcement generally, are a covered entity under HIPPA, the Act
does not apply to Brownings alleged conduct.). Despite her claim to the contrary in this
litigation, Officer Branch must have known at the time of the arrest that HIPAA did not
apply, as she testified that she was aware of the media regularly publishing photographs
of accident scenes. (App. 15, Branch Dep. at 79:16-20.)
Second, no reasonable police officer would believe that an individual receiving
medical treatment in a public place had any expectation of privacy. Indeed, it is clearly
established law that an individual has no expectation of privacy in public spaces like Rosa
Parks Plaza and, thus, has no right to be free from photography in such places. See Cox
Broad. Corp. v. Cohn, 420 U.S. 469, 49293 (1975) (holding that privacy rights do not
prevent the publication of public information and explaining that [t]hose who see and
hear what transpired [in a public place] can report it with impunity); Dickson v. Am.
Red Cross Natl Headquarters, No. 3:95CV2391P, 1997 WL 118415, at *11 (N.D.
Tex. Mar. 10, 1997) (quoting Restatement (Second) of Torts 625B for the proposition
19
that there [is no] liability for observing [a person] or even taking his photograph while
he is walking on the public highway, since he is not then in seclusion, and his appearance
is public and open to the public eye); Heath v. Playboy Enters., Inc., 732 F. Supp. 1145,
1150 (S.D. Fla. 1990) (rejecting privacy claim relating to publication of photograph of a
juvenile in a public place and noting that consent is irrelevant to the privileged
publication of public facts (collecting cases)).
Another federal court rejected arguments nearly identical to those Officer Branch
raises here. Connell v. Town of Hudson, 733 F. Supp. 465, 47072 (D.N.H. 1990). In
that case, a police officer ordered a freelance photographer to stop taking pictures of a
medical scene. Id. at 466. The photographer sued the city, claiming that the police
officers actions violated his constitutional rights. Id. In defense, the city argued that the
police officers actions were reasonable because he was attempting to protect the privacy
rights of the accident victim. Id. at 470. The court rejected the citys argument as legally
wrong:
Although the emergency personnel and police thought it wrong for [the
photographer] to photograph the accident, it is not for them to protect the
privacy rights of the victim . . . and the sensibilities of her family, even in
an attempt to curtail what they thought were the voyeuristic interests of a
freelance photographer. . . . The Court does not accept defendants
paternalistic view of police authority.
Id. at 47071 (citations omitted).
As this authority makes clear, no reasonable officer would believe that HIPAA
prevented Adelman from photographing the public medical scene. Because Officer
Branch has no objectively reasonable justification for violating Adelmans clearly
20
established right to be free from arrest without probable cause, the Court should enter
judgment finding Officer Branch liable for violating Adelmans Fourth Amendment rights.
II. The Court should grant summary judgment on DARTs liability pursuant to
1983 for violating Adelmans First, Fourth, and Fourteenth Amendment rights.
A municipal entity may be held liable under 1983 for violating a persons
constitutional rights. Monell v. Dept of Soc. Servs., 436 U.S. 658, 69091 (1978).
DART . . . has been recognized to be a municipal entity subject to suit under 42 U.S.C.
1983. Edwards v. Dallas Area Rapid Transit, No. 3:14cv417P, 2014 WL
5824550, at *3 (N.D. Tex. Nov. 10, 2014) (Horan, J., recommendation accepted by
Solis, J.) (collecting cases). [M]unicipal liability under section 1983 requires proof of
three elements: a policymaker; an official policy; and a violation of constitutional rights
whose moving force is the policy or custom. Piotrowski v. City of Houston, 233 F.3d
567, 578 (5th Cir. 2001) (citing Monell, 436 U.S. at 694).1
Here, the evidence establishes each of the elements of Adelmans Monell claim.
Adelman was arrested pursuant to DARTs Code of Conduct, which authorizes the arrest
of individuals on DART property for any non-transportation purpose, including
photography and other expressive activities. Officer Branch used this official policy of the
DART Board of Directors as grounds to arrest Adelman for photographing police, in
violation of his First and Fourth Amendment rights.
1
Unlike Officer Branch, DART cannot assert a defense of qualified immunity because [m]unicipalities and
officers in their official capacity . . . have no . . . right to be free from suit under the doctrine of qualified
immunity. Zarnow v. City of Wichita Falls, 500 F.3d 401, 406 (5th Cir. 2007); accord Owen v. City of
Independence, 445 U.S. 622, 638 (1980) (holding that qualified immunity defense is not available to
municipal defendants).
21
A. Adelman was arrested pursuant to an official policy adopted by the DART

Board of Directors.
Summary judgment is appropriate on the first two elements of Adelmans
municipal liability claim against DART because DART has conceded that Adelman was
arrested pursuant to an official policy adopted by DARTs policymaker, the Board of
Directors. The relevant official policy is found in DARTs Code of Conduct 2.02(a),
which states:
A person is prohibited from committing the following acts on a DART

vehicle, DART facility, or DART property unless otherwise specified in this
Section:
...
(15) Unauthorized use of a DART facility or DART property for non-
transportation purposes.
(App. 90.) Section 2.02(b) provides that a person who violates this provision may be
ordered to leave a DART facility, and, subsequently, the situation may be handled by
DART Police. (App. 91.)
There is no dispute that this is an official DART policy adopted by the DART
Board of Directors, which is DARTs policymaker. For starters, the Code of Conduct
itself reflects that the DART Board is authorized to implement rules and regulations
under the general authority of Chapter 452 of the Texas Transportation Code and under
Section 452.105. (App. 88.) Additionally, the Code of Conduct was adopted pursuant
to a Resolution of the DART Board and signed by the Chair of the Board, DARTs
Counsel, and DARTs President/Executive Director. (App. 86-87.) Finally, DART has
twice acknowledged that the Code of Conduct reflects its official policyfirst, when
DART identified the Code of Conduct as DARTs formal policy on criminal trespass
22
warnings and arrests in response to an interrogatory; and second, when DARTs
corporate representative admitted that the Code of Conduct was an accurate reflection
of DARTs policy when Mr. Adelman was arrested. (App. 183-84, Interrog. No. 2;
App. 27, Spiller Dep. at 26:7-27:1.)
There also is no dispute that Adelman was arrested pursuant to the official policy
reflected in DARTs Code of Conduct 2.02(a)(15). Officer Branch and DART have
both confirmed that Adelmans arrest for criminal trespass was pursuant to this policy.
(See App. 27, Spiller Dep. at 27:13-16 (acknowledging that Section 2.02(a)(15) [of
DARTs Code of Conduct] is the policy basis for Officer Branchs arrest of Mr.
Adelman); App. 18, Branch Dep. at 230:14-231:2 (similar).) This is consistent with the
official statement issued to members of the media by DARTs spokesperson, Morgan
Lyons, that DART reviewed the exchange and believe[s] the officers acted properly.
(App. 106.) And most importantly, DARTs corporate representative and Chief of Police,
James Spiller, testified that Officer Branchs arrest of Mr. Adelman on February 9th,
2016 [was] consistent with DART policy. (App. 25, Spiller Dep. at 17:6-9.)
B. This DART policy was the moving force that led to the violation of
Adelmans First and Fourth Amendment rights.
As the preceding demonstrates, DARTs Code of Conduct was the moving force
that led to Adelmans arrest. (App. 27, Spiller Dep. at 27:13-16; App. 18, Branch Dep. at
230:14-231:2.) In fact, Officer Branchs supervisor, Sergeant Hutchins, specifically
instructed Officer Branch to utilize the Code of Conduct as a means to justify arresting
Adelman for criminal trespass. (App. 65 (Hutchins statement to internal affairs: I told
[Officer Branch] to ask [Adelman] if he is utilizing DART services, and if he is not ask
23
him to leave. After that if he refuses to leave then arrest him for Criminal Trespass.);
App. 16, Branch Dep. at 93:18-24 (testifying that Sergeant Hutchins approved the arrest
of Adelman [o]n the grounds that . . . he was violating a Code of Conduct).) Hence,
there is no genuine issue of material fact regarding whether DART policy was the moving
force behind Adelmans arrest.
Moreover, the evidence establishes that Adelmans arrest, supported by DART
policy, violated his constitutional rights. Specifically, the arrest violated Adelmans First
Amendment right to record police and emergency activity and his Fourth Amendment
right to be free from arrest without probable cause.

violation of his First Amendment rights.
The First Amendment protects freedom of speech and freedom of the press. U.S.
CONST. Amend. I. Under the Fourteenth Amendment, the protections of the First
Amendment have been extended to municipal entities such as DART. See Reed v. Town
of Gilbert, -- U.S. --, 135 S. Ct. 2218, 2226 (2015) (explaining that the First Amendment
is applicable to a municipal government entity through the Fourteenth Amendment).
[T]he First Amendment goes beyond protection of the press and self-expression of
individuals to prohibit government from limiting the stock of information from which
members of the public may draw. First Natl Bank of Boston v. Bellotii, 435 U.S. 765,
783 (1978). For example, the Supreme Court has recognized that newsgathering is
protected by the First Amendment because without some protection for seeking out the
news, freedom of press could be eviscerated. Branzburg v. Hayes, 408 U.S. 665, 681
(1972). In fact, the Supreme Court has held that there is an undoubted right to gather
24
news from any source by means within the law. Houchins v. KQED, Inc., 438 U.S. 1,
11 (1978) (citation and internal quotation marks omitted).
Based on this line of authority, the Fifth Circuit recently held that the First
Amendment protects the right to record police. Turner, 848 F.3d at 690. Turner
involved nearly identical facts to those here: the plaintiff was video recording a police
station, when he was confronted by police officers, who demanded his identification and,
when he refused, handcuffed and detained him. Id. at 683. The court held that the First
Amendment prevents police interference with photography in this manner. Id. at 68990.
In addition to the general First Amendment protection that newsgathering and
photography enjoy, the court also noted the importance of the right to photograph police
as a means of ensuring government accountability:
Filming the police contributes to the publics ability to hold the police
accountable, ensure that police officers are not abusing their power, and
make informed decisions about police policy. Filming the police also
frequently helps officers; for example, a citizens recording might
corroborate a probable cause finding or might even exonerate an officer
charged with wrongdoing.
Id. at 689. The Fifth Circuits decision in Turner joined every circuit that has ruled on
this question: Each has concluded that the First Amendment protects the right to record
the police. Id. at 690.2
After Turner, there can be no dispute that there is a First Amendment right to
photograph police activity.3 This right to photograph also extends to emergency medical
2
See, e.g., Fields v. City of Philadelphia, 862 F.3d 353, 359 (3d Cir. 2017) ([R]ecording police activity in
public falls squarely within the First Amendment right of access to information. As no doubt the press has
this right, so does the public.); ACLU v. Alvarez, 679 F.3d 583, 59596 (7th Cir. 2012) (holding that First
Amendment protects the right to audio record police); Gilk v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)
(The filming of government officials engaged in their duties in a public place, including police officers
performing their responsibilities, fits comfortably within [First Amendment] principles.).
25
scenes. See Connell, 733 F. Supp. at 471 (finding a First Amendment right to photograph
an emergency medical scene and holding that police could not chase a photographer
away from an accident unless that photographer was unreasonably interfering with police
activity); cf. Gilk, 655 F.3d at 82 (recognizing general First Amendment right to film[]
government officials engaged in their duties in a public place); Smith v. City of
Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (The First Amendment protects the
right to gather information about what public officials do on public property, and
specifically, a right to record matters of public interest.).
Moreover, this right to record police activity and emergency scenes applies not
only to members of the traditional press, but also to citizen journalists and the public at
large. Turner implicitly recognized this by finding a right to record police in a case in
which the plaintiff was not a member of the traditional media and referring to the role of
a citizens recording in holding police accountable. Turner, 848 F.3d at 689. Courts
across the country have been even more explicit in recognizing the rights of the general
public, including citizen journalists, to photograph police activity. In Gilk, for example,
the First Circuit held that [i]t is of no significance that the present case . . . involves a
3
The Fifth Circuit in Turner concluded that, although there is a First Amendment right to record police
activity going forward, there was no clearly established First Amendment right to record the police at the
time of Turners activities in September 2015. Turner, 848 F.3d at 687. Adelman recognizes that this may
also mean that his First Amendment right to photograph the emergency scene in February 2016 was not
clearly established at that time. But the issue of whether Adelmans First Amendment right was clearly
established is relevant only to Officer Branchs qualified immunity defensenot to Adelmans claim for
municipal liability against DART. See Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 532
(5th Cir. 1996) (Because the City of Houston is not entitled to the benefit of qualified immunity,
Meadowbriar need not allege the violation of a clearly established right. (citation omitted)); cf. Fields, 862
F.3d at 362 (holding that qualified immunity shielded police officers from First Amendment claim because
right to photograph was not clearly established but remanding to district court to determine whether
municipality could be held liable for violating First Amendment). For purposes of Adelmans Monell claim
against DART, the only inquiry is whether there was a violation of Adelmans First Amendment rights
clearly established or not.
26
private individual, and not a reporter, gathering information about public officials.
Gilk, 655 F.3d at 83. The court reasoned that [t]he First Amendment right to gather
news is, as the Court has often noted, not one that inures solely to the benefit of the news
media; rather, the publics right of access to information is coextensive with that of the
press. Id. The court also noted that the proliferation of camera phones and blogs
means changes in technology and society have made the lines between private citizen and
journalist exceedingly difficult to draw, which make[s] clear why the news-gathering
protections of the First Amendment cannot turn on professional credentials or status.
Id. at 84.
Likewise, the Third Circuit in Fields also recognized the right of the general public
to photograph police and noted the importance of the role of citizen journalists:
Bystander videos provide different perspectives than police and dashboard

cameras, portraying circumstances and surroundings that police videos
often do not capture. Civilian video also fills the gaps created when police
choose not to record video or withhold their footage from the public. . . .
Moreover, the proliferation of bystander videos has spurred action at all
levels of government to address police misconduct and to protect civil
rights. These videos have helped police departments identify and discipline
problem officers. They have also assisted civil rights investigations and
aided in the Department of Justices work with local police departments.
And just the act of recording, regardless what is recorded, may improve
policing.
Fields, 862 F.3d at 35960 (citations omitted).
Against this backdrop, Adelmans arrest for taking photographs of the scene at
Rosa Parks Plaza violates the First Amendment. Adelman was on public property to
photograph a K2 overdose incident scene where police officers and medical personnel
were present. (App. 5, Adelman Decl. 6.) Adelman believed that this medical scene was
27
potentially newsworthy and of public interest, particularly in light of recent news
coverage surrounding the K2 epidemic. (Id.) Under Turner and similar case law across
the country, Adelmans activity was protected by the First Amendment.
DART will likely argue that Adelmans arrest for criminal trespass was the result
of his failure to follow Officer Branchs commands to leave the DART plaza and not for
taking photographs, but the evidence proves otherwise. Indeed, just three days after
Adelman was arrested, DART Police Chief James Spiller directed an investigation into the
arrest, stating as follows:
On February 9, 2016, Officer Stephanie Branch arrested Avi Adelman at

Rosa Parks Plaza for criminal trespass. However, Officer Branchs audio
recordings indicate that her reason for contacting Avi Adelman was due to
him taking pictures of a person receiving medical treatment by Dallas Fire
Rescue personnel. Subsequently, Adelmans refusal to stop taking pictures
and leave the scene after being directed to do so led to his arrest for criminal
trespass.
(App. 95 (emphasis added).) Additionally, when asked why she first approached
Adelman, Officer Branch testified that it was because [h]e had a camera, and the
policy states that I can investigate, I can initiate a contact. (App. 104, Branch Dep. at
104:1-5.) The audio of Officer Branchs interactions with Adelman confirms this, as
noted above. (App. 69-70.) Finally, DART found in its own internal investigation that
Officer Branchs first contact with Adelman was walking over and telling him to leave
because he cannot take photographs. (App. 46.)
Thus, the evidence establishes that Officer Branch arrested Adelman for taking
photographs at Rosa Parks Plaza and relied on DARTs Code of Conduct to make that
arrest. Because this arrest violated Adelmans First Amendment right to photograph
government officials in public, Adelman is entitled to summary judgment.
28

violation of his Fourth Amendment rights.
The Fourth Amendment, as applicable to a municipal entity such as DART
through the Fourteenth Amendment, prohibits unreasonable search and seizure, including
arrest without probable cause. Gerstein, 420 U.S. at 106; Camara v. Mun. Court of City
& Cnty. of San Francisco, 387 U.S. 523, 529 (1967).
As explained in detail in Section I.A, Officer Branchs arrest of Adelman was
without probable cause and a violation of his Fourth Amendment rights. DARTs own
internal affairs investigation and the testimony of its corporate representative, Chief
Spiller, confirmed that Officer Branch arrested Adelman without probable cause. (See
App. 50 (internal affairs report finding that Officer Branch did not establish probable
cause to effect the arrest of Adelman); App. 33, Spiller Dep. 114:25-115:9 (admitting
that Officer Branchs arrest of Mr. Adelman was an illegal arrest without probable
cause).) Additionally, it is undisputed that the Code of Conduct was the policy on
which Officer Branch relied to claim probable cause. (See, e.g., App. 21, Branch Dep. at
242:14-243:11 (testifying that she was using the Code of Conduct as [her] gauge for
determining probable cause).)
Because an officer acting under color of state law violated Adelmans Fourth
Amendment rights and because DARTs policy was the moving force of that violation,
Adelman is entitled to summary judgment against DART on his Fourth Amendment claim
under Monell.
29
III. The Court should grant summary judgment on Adelmans Application for
Permanent Injunction and enjoin DART from enforcing its Code of Conduct to
prohibit photography on DART property.
As previously explained, DARTs Code of Conduct 2.02(a) states:
A person is prohibited from committing the following acts on a DART

vehicle, DART facility, or DART property unless otherwise specified in this
Section:
...
(15) Unauthorized use of a DART facility or DART property for non-
transportation purposes.
(App. 90.) This policy is unconstitutional because DART uses it to prevent unwanted
photography at DART facilities. In fact, Chief Spiller testified, as DARTs corporate
representative, that the Code of Conduct prohibits any non-transportation activity on
DART property, including not only photography, but also other expressive activity such
as protests that DART has not expressly authorized. (App. 27, 29, Spiller Dep. at 28:16-
22, 33:4-11.) In addition, DARTs other corporate representative testified that expressive
activity is only permitted at DART stations with prior approval from the president or
executive director of DART, which can be withheld in his sole discretion. (App. 41,
Lyons Dep. at 146:1-20.) This is plainly unconstitutional because [t]he First
Amendment is violated by unreasonable and unequal restrictions on access to public
property, as well as by delegation of authority to a single person to determine who may
use public property for free speech. Dallas Assn of Cmty. Orgs., 670 F.2d at 632
(citing Shuttlesworth v. City of Birmingham, 394 U.S. 147, 15051 (1969)).
Other courts have found similar policies unconstitutional. See, e.g., Sanchez v.
City of Austin, No. A-11-CV-993-LY, slip op. at 13 (W.D. Tex. Sept. 27, 2012)
(enjoining unconstitutional criminal trespass policy that permitted police to bar protestors
30
from public property because [i]t is necessary to be physically present in a public forum
to engage in free speech in that forum); Anthony, 209 S.W.3d at 30708 (finding that
policy permitting officers to issue criminal trespass warnings banning individuals from
public property without due process was unconstitutional).
DART may argue that the Code of Conduct is not intended to prevent
photography and that it has other policies that generally permit photography at DART
stations. But Chief Spiller, as DARTs corporate representative, testified that the Code of
Conduct dictates an officers decisions in the field and is the controlling policy in the
event of a conflict with the photography policy. (App. 30, Spiller Dep. at 46:13-20.) In
other words, even though DART has a policy that purports to allow photography at
transit centers, the Code of Conduct effectively eliminates that policy because an officer
can always issue trespass warnings and make trespass arrests when someone is using
DART property for a non-transportation purpose. Indeed, that is exactly how the Code
of Conduct was used against Adelman in this case. Officer Branch testified that DART
policy required that . . . we make contact with everybody on that platform and ask them
for their DART pass and their purpose on DART property. (App. 19, Branch Dep. at
234:2-19). She further testified that she relied on this policy in approaching Adelman,
stating that she approached him because [h]e had a camera, and the policy states that
I can investigate, I can initiate a contact. (App. 17, Branch Dep. at 104:1-5.) Then,
when she asked her supervisor, Sergeant Hutchins, how to proceed, he informed her that
Adelman was supposed to be permitted to take photographs, but then he suggested a
back-door way to stop him from photographing: I told [Officer Branch] to ask
31
[Adelman] if he is utilizing DART services, and if he is not ask him to leave. After that if
he refuses to leave then arrest him for Criminal Trespass. (App. 65.)
Adelmans arrest is not the first time the Code of Conduct has been used to
prohibit people from exercising their First Amendment right to record police. For
example, in March 2014, a DART police officer told an individual that photography and
recording on DART property was prohibited by the Code of Conduct and ordered the
person to stop recording the police. (App. 31, Spiller Dep. at 57:14-24, 58:22-59:9,
60:18-22.) Additionally, DART records indicate that DART issued nearly 5,000 criminal
trespass warnings or arrests in the last two years, demonstrating DARTs widespread use
of the Code of Conduct to remove individuals from DART property. (App. 108-82.)
Although DART may impose reasonable time, place, and manner restrictions on
the right to photograph police, such restrictions must be narrowly tailored to serve a
significant governmental interest. Turner, 848 F.3d at 690 (citations omitted). A policy
that may be used to impose a complete prohibition on photography and expressive
activity does not meet this standard. See, e.g., Bd. of Airport Commrs of City of Los
Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 57475 (1987) (finding violation of First
Amendment where airport regulation restricted all expressive activity rather than merely
regulat[ing] expressive activity . . . that might create problems such as congestion or
disruption of [airport] activities); Fields, 862 F.3d at 360 (holding that preventing a
person from photographing police activitywhen there was no evidence of interference
with policewas not a reasonable time, place, and manner restriction). In fact, courts
have rejected even less restrictive impositions on expressive activity at transit centers as
32
unconstitutional. See, e.g., Jamison v. City of St. Louis, 828 F.2d 1280, 1284 (8th Cir.
1987) (holding that policy permitting airport director to approve or reject expressive
activity in his discretion was not narrowly tailored); Local 32B-32J Serv. Employees Intl
Union, AFL-CIO v. Port Authority of NY & NJ, 3 F. Supp. 2d 413, 422 (S.D.N.Y. 1998)
(granting permanent injunction and finding that restriction on number of people that
could be present at bus terminal for purposes of expressive activity was not narrowly
tailored).
DARTs Code of Conduct is an unconstitutional restriction on speech and press
activity and on access to a public forum for purposes of conducting expressive activity
such as photography. The Code of Conduct directly contravenes established authority,
including, most recently, the Fifth Circuit decision in Turner making clear that the First
Amendment protects the right to record police. Turner, 848 F.3d at 690. The Court
therefore should enjoin DART from enforcing its Code of Conduct to prevent, interfere
with, or punish photography and other expressive activity at DART transit centers and
stations.
CONCLUSION
Officer Branchs arrest of Adelman on February 9, 2016 violated Adelmans
fundamental constitutional rights. As DARTs own investigation recognized, Officer
Branch arrested Adelman without probable cause, and no reasonable police officer would
have believed she had probable cause to arrest an individual merely for exercising his
right to be present on public property to take photographs. Additionally, DART is liable
for the violation of Adelmans clearly established rights because it had (and still has) a
33
Code of Conduct that justifies criminal trespass arrests as a basis for punishing and
preventing expressive activity such as photography. Adelman respectfully requests that
the Court enter partial summary judgment finding Officer Branch liable for violating his
Fourth Amendment rights and finding DART liable for violating his First and Fourth
Amendment rights. Adelman also requests that the Court enter a permanent injunction
prohibiting DART from enforcing its Code of Conduct to prevent photography and other
expressive activity in violation of the First Amendment.
Respectfully submitted,
REESE GORDON MARKETOS LLP
By: /s/ Tyler J. Bexley

Tyler J. Bexley
State Bar No. 24073923
750 N. Saint Paul St., Suite 600
Dallas, Texas 75201-3201
214.382.9810 telephone
214.501.0731 facsimile
tyler.bexley@rgmfirm.com
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
The undersigned certifies that, on September 15, 2017, the foregoing document
was submitted to the clerk of the U.S. District Court, Northern District of Texas, using
the electronic case filing system (CM/ECF) of the court. I certify that the document was
served on all known counsel of record electronically as authorized by Federal Rule of
Civil Procedure 5(b)(2).
s/ Tyler J. Bexley
34

MSJ Adelman Brief (Filed)

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Case 3:16-cv-02579-B Document 52 Filed 09/15/17 Page 1 of 39 PageID 1090

UNITED STATES DISTRICT COURT

PLAINTIFFS BRIEF IN SUPPORT OF HIS

ATTORNEY FOR PLAINTIFF

STATEMENT OF FACTS ................................................................................................ 2

I. Avi Adelmans Background .................................................................................... 2

II. February 9, 2016 Arrest ......................................................................................... 3

III. The Aftermath and Investigation ............................................................................ 7

I. The Court should grant summary judgment on Officer Branchs liability

A. Officer Branch, acting under color of state law, violated Adelmans

B. Officer Branch is not entitled to qualified immunity from Adelmans

A. Adelman was arrested pursuant to an official policy adopted by the

1. Adelmans arrest pursuant to DARTs Code of Conduct was a

2. Adelmans arrest pursuant to DARTs Code of Conduct was a

Camara v. Mun. Court of City & Cnty. of San Francisco,

Club Retro, LLC v. Hilton,

Connell v. Town of Hudson,

Cox Broad. Corp. v. Cohn,

Dickson v. Am. Red Cross Natl Headquarters,

Edwards v. Dallas Area Rapid Transit,

Fields v. City of Philadelphia,

First Natl Bank of Boston v. Bellotii,

Fontenot v. Upjohn Co.,

Heath v. Playboy Enters., Inc.,

Houchins v. KQED, Inc.,

Jamison v. City of St. Louis,

Kennedy v. City of Cincinnati,

LeMaire v. La. Dept. of Transp. & Dev.,

Lyons v. Folsom Mercy Hosp.,

McClendon v. City of Columbia,

Meadowbriar Home for Children, Inc. v. Gunn,

Monell v. Dept of Soc. Servs.,

Owen v. City of Independence,

Piotrowski v. City of Houston,

Reed v. Town of Gilbert,

Sanchez v. City of Austin,

Shuttlesworth v. City of Birmingham,

Smith v. City of Cumming,

Turner v. Lieutenant Driver,

United States v. Abdallah,

Zarnow v. City of Wichita Falls,

STATUTES AND OTHER SOURCES

FED. R. CIV. P. 56(a) ....................................................................................................... 10

Restatement (Second) of Torts 625B ............................................................................ 19

U.S. CONST. Amend. I ..................................................................................................... 24

U.S. CONST. Amend. IV .................................................................................................. 11

Pursuant to Federal Rule of Civil Procedure 56, Plaintiff Avi S. Adelman

Application for Permanent Injunction.

These facts are largely undisputedDARTs own internal investigation confirmed

rights in the future.

Adelman seeks partial summary judgment as follows:

1. On Count II, a finding that Officer Branch violated Adelmans Fourth

3. A permanent injunction prohibiting DART from enforcing its Code of

I. Avi Adelmans Background

including publishing a neighborhood blog and providing photographs to media outlets.

Professional Journalists (SPJ), organizations that promote professional photography and

managing a website relating to the right to photograph. (Id.) As a freelance journalist

outlets. (Id. 2.)

II. The February 9, 2016 Arrest

On February 9, 2016, Adelman was in downtown Dallas, when he decided to

purposes of a crime watch website he maintained and to learn about potential

Fire-Rescue (DFR) paramedics to respond to a K2 overdose victim at DARTs Rosa Parks

Shortly after Adelman began photographing, a uniformed DART police officer

continue obstructing his ability to photograph. (Id.)