Beruflich Dokumente
Kultur Dokumente
v.
Defendants.
Plaintiffs Contentions:
Plaintiff Avi S. Adelman contends that DART and Officer Branch violated
his fundamental constitutional rights to freedom of speech, freedom of the press,
and freedom from unlawful arrest. Defendants violation of these rights occurred
on February 9, 2016, when Officer Branch arrested Adelman without probable
cause and jailed him overnight, all because Adelman was exercising his First
Amendment right to take photographs in public.
Officer Branchwith the blessing of her supervisor, DART Police Sergeant
T. Hutchinsused a trumped-up charge of criminal trespass to justify her unlawful
arrest of Adelman. Officer Branch also justified the arrest by falsely stating that
Adelman was interfering with Dallas Fire/Rescue (DFR) paramedics and that those
paramedics had asked Officer Branch to move Adelman from the scene.
DART supported Officer Branchs false account, with its spokesman,
Morgan Lyons, stating less than 24 hours after the arrest that DART had reviewed
the exchange and believes the officers acted appropriately. According to Lyons,
Dallas Fire-Rescue asked [Adelman] to move. He refused. Paramedics asked us
to ask him to move several times. He failed to comply and thats why he was
arrested. The evidence paints a starkly different picture from the one painted by
Lyons and DART. In fact, just a few days after Lyons issued his statement, DFR
spokesman Jason Evans disputed DARTs account: At no point were any requests
made to ask Mr. Adelman to leave the scene and/or stop taking pictures. In
addition, there were no requests made to [DART] officers to ask him to leave the
scene and/or stop taking pictures.
Faced with these inconsistenciesand the overwhelming evidence
demonstrating that the arrest and imprisonment were clear constitutional
JOINT STATUS REPORT - Page 2
Officer Branch arrested Adelman pursuant to this policy, and with express
approval from Sergeant H. Hutchins and Sergeant T. Hutchins to use a trumped-up
charge for criminal trespass as a means to prevent Adelman from exercising his
First Amendment right to photograph.
Lyons, commented that Adelmans arrest was proper. Additionally, DART has
failed to train its officers regarding the First Amendment right to photograph and
has failed to supervise and discipline its officers who violate that First Amendment
right.
Despite finding that one of its officers violated Adelmans constitutional
rights and made 23 false statements, DART barely disciplined Officer Branch. In
fact, while a senior DART Internal Affairs Officer recommended that Officer
Branch be terminated, DART Police Chief James Spiller made an executive
decision to suspend Officer Branch for just three days in the face of these major
rights violations and false statements by one of its officers. DART also has refused
even to apologize to Adelman after violating his constitutional rights, berating and
humiliating him, and forcing him to spend nearly 24 hours in jail for nothing more
than taking photographs in a public space. Additionally, DART has not made any
policy changes and continues to enforce policies that are likely to result in future
constitutional violations.
As a result, Adelman filed this lawsuit against DART and Officer Branch,
alleging violations of his First, Fourth, and Fourteenth Amendment rights pursuant
to 42 U.S.C. 1983.
On February 9, 2016 at around 8:20 pm, DART police and Dallas Fire and
Rescue (DFR) were responding to a young male passed out at or near the Rosa
Parks Plaza. DART Police Officer Stephanie Branch (Branch) was at the scene
and noticed Plaintiff Avi Adelman nearby taking pictures and asked him to step
back and give DFR room to attend to the person that was passed out. A discussion
ensued between Officer Branch and the Plaintiff as to what rights the Plaintiff had
to be at this location and take photos. Officer Branch believed she had probable
cause to arrest the Plaintiff for criminal trespass, the Plaintiff was arrested for
criminal trespass and was transported to the Dallas County jail.
As the Plaintiffs criminal trespass arrest was being reviewed by the case
filing manager and/or the DART police chain of command, it was decided that the
Plaintiffs arrest was not consistent with DART police policies and directives and
although Officer Branchs actions may have been within her discretion, they were
JOINT STATUS REPORT - Page 5
not in line with the DART Police Departments directives concerning photography
on DART property. On February 16, 2016, the DART Chief of Police dismissed
the criminal trespass charge that had been filed against the Plaintiff.
DART contends that an Internal Affairs investigation was completed on the
actions Officer Branch took on February 9, 2016 involving the Plaintiff and
disciplinary action of a 3-day suspension and retraining was issued for the
sustained findings of the internal affairs investigation.
DART has a photograph policy that allows persons to take photographic or
video images of DART property therefore Plaintiff cannot establish the existence
of an officially adopted policy or an established custom of DART or DART police
that caused any physical injury to the Plaintiff and a causal connection between the
policy or custom and the deprivation of any constitutional right.
DART contends Officer Branch has met the minimum Texas peace officer
training requirements mandated by the Texas Commission on Law Enforcement
(TCOLE) and therefore the Plaintiff cannot establish any claim related to lack of
training.
DART contends Officer Branch was on duty and in the course and scope of
her employment as a peace officer with DART when this incident occurred and
had arguable probable cause or made a reasonable mistake of fact in believing
probable cause existed to arrest the Plaintiff and therefore Officer Branch is
entitled to Qualified Immunity.
DART contends that the actions of Officer Branch were investigated and
reasonable, good faith efforts were made to dismiss the criminal trespass charges
against the Plaintiff.
C.
On February 9, 2016 at around 8:20 pm, DART police and Dallas Fire and
Rescue (DFR) were responding to a young male passed out at or near the Rosa
Parks Plaza. DART Police Officer Stephanie Branch (Branch) was at the scene
and noticed Plaintiff Avi Adelman nearby taking pictures and asked him to step
back and give DFR room to attend to the person that was passed out. A discussion
ensued between Officer Branch and the Plaintiff as to what rights the Plaintiff had
to be at this location and take photos. Officer Branch believed she had probable
cause to arrest the Plaintiff for criminal trespass, the Plaintiff was arrested for
criminal trespass and was transported to the Dallas County jail.
As the Plaintiffs criminal trespass arrest was being reviewed by the case
filing manager and/or the DART police chain of command, it was decided that the
Plaintiffs arrest was not consistent with DART police policies and directives and
although Officer Branchs actions may have been within her discretion, they were
not in line with the DART Police Departments directives concerning photography
JOINT STATUS REPORT - Page 7
on DART property. On February 16, 2016, the DART Chief of Police dismissed
the criminal trespass charge that had been filed against the Plaintiff.
DART has a photograph policy that allows persons to take photographic or
video images of DART property therefore Plaintiff cannot establish the existence
of an officially adopted policy or an established custom of DART or DART police
that caused any physical injury to the Plaintiff and a causal connection between the
policy or custom and the deprivation of any constitutional right.
Officer Branch contends that she has met the minimum Texas peace officer
training requirements mandated by the Texas Commission on Law Enforcement
(TCOLE) and therefore the Plaintiff cannot establish any claim related to lack of
training.
Officer Branch contends that she was on duty and in the course and scope of
her employment as a peace officer with DART when this incident occurred and
had arguable probable cause or made a reasonable mistake of fact in believing
probable cause existed to arrest the Plaintiff and therefore Officer Branch is
entitled to Qualified Immunity.
2.
Jurisdiction/Venue Challenges:
3.
None.
5.
information:
Electronic documents will be produced in PDF format, unless otherwise
requested by the parties.
8.
preparation material:
None.
9.
None.
10.
Other orders by the Court under Rule 26(c) or Rule 16(b) and (c):
None.
11.
Proposed deadlines:
Plaintiffs Proposal
January 31, 2017
Defendants Proposal
Same
December 1, 2017
Same
April 10, 2017 or 30
days after the other
partys disclosure
Plaintiffs proposal for these deadlines is based on a requested trial date of September 5, 2017.
If the Court sets a later trial date, Plaintiff requests proportionally later deadlines for amending
the pleadings, designating experts, and objecting to experts.
JOINT STATUS REPORT - Page 11
Respectfully submitted,
s/ Tyler J. Bexley
Tyler J. Bexley
State Bar No. 24073923
REESE GORDON MARKETOS LLP
750 N. Saint Paul St., Suite 610
Dallas, Texas 75201-3202
214.382.9810 telephone
214.501.0731 facsimile
tyler.bexley@rgmfirm.com
ATTORNEY FOR PLAINTIFF
s/ Jane E. Bishkin
Jane E. Bishkin
SBN: 00783663
Law Office of Jane E. Bishkin
10000 N. Central Expressway, Suite 400
Dallas, TX 75231
(214) 584-9020 Office
(214) 584-9021
jbish@swbell.net
Attorney for Stephanie Branch
s/ Higinio Gamez
Higinio Gene Gamez
Senior Assistant General Counsel
SBN: 90001969
LEGAL DEPARTMENT
DALLAS AREA RAPID TRANSIT
P. O. Box 660163
Dallas, Texas 75266-7255
(214) 749-3196 Fax (214) 749-0281
ggamez@dart.org
Attorney for Defendant DART
CERTIFICATE OF SERVICE
The undersigned certifies that on December 14, 2016, the foregoing
document was submitted to the clerk of the U.S. District Court, Northern District
of Texas, using the electronic case filing system (CM/ECF) of the court. I certify
that the document was served on all known counsel of record electronically as
authorized by Federal Rule of Civil Procedure 5(b)(2).
s/ Tyler J. Bexley