Democracy Coalition v. City of Austin

• Citation: 141 S.W.3d 282
• Decision Date: 15 July 2004
• Docket Number: No. 03-03-00235-CV.,03-03-00235-CV.
• Parties: DEMOCRACY COALITION, Stefan Wray, Risako Kurono, Matthew Korn, Kristan Barber, Chandra Ward, Kristin Richardson, Lucinda Beringer, Sonia Santana, Douglas Foxvog, Ann Stark, and Susana Almanza, Appellants, v. The CITY OF AUSTIN, Appellee.
• Court: Court of Appeals of Texas

141 S.W.3d 282

DEMOCRACY COALITION, Stefan Wray, Risako Kurono, Matthew Korn, Kristan Barber, Chandra Ward, Kristin Richardson, Lucinda Beringer, Sonia Santana, Douglas Foxvog, Ann Stark, and Susana Almanza, Appellants, v. The CITY OF AUSTIN, Appellee.

No. 03-03-00235-CV.

Court of Appeals of Texas, Austin.

July 15, 2004.

Appeal from the 345th Judicial District Court, Travis County, Margaret A. Cooper, J James C. Harrington, Wayne N. Krause, Sheri Joy Nasya Tolliver, Austin, for appellants.

Robin E. Sanders, Assistant City Attorney, City of Austin, Austin, for appellee.

Before Justices B.A. SMITH, PATTERSON and PEMBERTON.

OPINION

BEA ANN SMITH, Justice.

This case involves a complaint by a community action group, the Democracy Coalition, and its individual members (collectively, appellants) that the City of Austin— through its police department, individual officers, and official policies as executed— violated their constitutional rights to free speech and free assembly during President George W. Bush's appearance in Austin shortly after he was elected. Appellants assert that the City violated their rights when police officers prevented them from assembling in a traditionally recognized free-speech area to voice their protest against the President, and when mounted officers used their horses to intimidate, physically contact, and disrupt their protest. The trial court entered a directed verdict for the City on appellants' federal and state constitutional claims. Because appellants failed to present evidence on one or more elements of their federal claim, we affirm the judgment of the district court as to that claim. We reverse the district court's judgment as to the state constitutional claim because the City was not entitled to judgment as a matter of law, and we remand that portion of this cause for further proceedings consistent with this opinion.

BACKGROUND

Newly elected President George W. Bush visited Austin on April 27, 2001, to commemorate the grand opening of the Bob Bullock State History Museum. After visiting the museum, the President went to the nearby Governor's Mansion to have lunch with Governor Rick Perry. Appellants had protested against the President at the museum and then proceeded toward the mansion to continue their protest. Appellants approached the intersection of 11th and Lavaca Streets from the northeast, intending to cross the streets and proceed to an area directly west of the mansion, which is traditionally recognized as a spot to exercise free-speech rights in full view of the media and officials visiting the mansion. Appellants were prevented from crossing the street by a row of Austin Police Department (APD) officers, who were standing just off the sidewalk's curb in the street. The secret service allegedly asked the APD, for security reasons, to keep people from crossing the street or approaching the mansion.

As appellants approached the intersection, Sergeant Darrell Boydston called in the mounted-patrol unit to help contain the protestors on the northeast corner of the street. Four police officers mounted on horses proceeded north on Lavaca Street toward appellants. The mounted officers approached appellants, using their horses to move the protestors from the street back onto the sidewalk toward a parking lot to allow the officers on foot to get out of the street to avoid oncoming traffic. Appellants were periodically chanting and shouting at the police officers but at all times were peaceful in their protest. At one point, the horse of Officer Ken Farr unexpectedly bolted into the crowd of appellants, allegedly physically contacting some of them but harming no one. Once Officer Farr regained control of his horse, he retook his position near the edge of the sidewalk with the other mounted officers. Eventually the mounted unit left the scene, but police officers on foot continued to prevent appellants from crossing the street in either direction.

Appellants filed suit in Travis County district court, alleging that the actions of the officers and their employer, the City, violated their federal and state constitutional rights to free speech and assembly; they sought damages as well as injunctive and declaratory relief. Their federal claim was filed under section 1983 of title 42 of the United States Code, which imposes liability on a government that, under color of some official policy, "causes" an employee to violate another's constitutional rights. Monell v. Department of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see 42 U.S.C.A. § 1983 (West 2003).¹ Their state claims in equity sought to enjoin the use of similar tactics in the future to control political speech, along with declaratory relief.² At the close of appellants' evidence, the City moved for a directed verdict, contending that appellants had presented no evidence of an official policy that was unconstitutional or of which the City had notice that was being implemented in a way to violate citizens' constitutional rights. After hearing argument on the City's motion, the trial court entered a directed verdict, dismissing appellants' federal and state claims against the City.³

DISCUSSION

Standard of review

A directed verdict is proper only when (1) the evidence conclusively establishes the right of the movant to judgment or negates the right of the opponent, or (2) the evidence is insufficient to raise a fact issue that must be established before the opponent is entitled to judgment. Prudential Ins. Co. of Am. v. Financial Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). In reviewing a directed verdict, we view the evidence in the light most favorable to the party against whom the verdict was rendered and disregard all contrary evidence and inferences. Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex.1994); White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262 (Tex.1983). If there is any conflicting evidence of probative value that raises a material fact issue on any theory of recovery, a determination of that issue is for the jury. Szczepanik, 883 S.W.2d at 649; White, 651 S.W.2d at 262.

Although the rules of civil procedure require a motion for directed verdict to state the specific grounds supporting it, Tex.R. Civ. P. 268, the failure to specify a ground in the motion is not fatal if there are no fact issues raised by the evidence and the prevailing party is entitled to judgment as a matter of law. Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 195 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (citing Texas Employers Ins. Ass'n v. Page, 553 S.W.2d 98, 102 (Tex. 1977)). Similarly, even if the reason given by the trial court is erroneous, the granting of a directed verdict can be affirmed if another ground exists to support it. Robbins v. Payne, 55 S.W.3d 740, 746 (Tex. App.-Amarillo 2001, pet. denied) (citing Kelly v. Diocese of Corpus Christi, 832 S.W.2d 88, 90 (Tex.App.-Corpus Christi 1992, writ dism'd w.o.j.)).

Section 1983 liability

The requirements for section 1983 liability were first enunciated by the United States Supreme Court in Monell: (1) the execution of a government's policy or custom, (2) that is made by the government's lawmakers or those whose edicts or acts may fairly be said to represent official policy, (3) that inflicts constitutional injury. 436 U.S. at 694, 98 S.Ct. 2018.⁴ "Locating a `policy' ensures that a municipality is held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality." Board of County Comm'rs v. Brown, 520 U.S. 397, 403-04, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018). The Supreme Court has "consistently refused to hold municipalities liable under a theory of respondeat superior." Id. at 403, 117 S.Ct. 1382. "The `official policy' requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible." Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Recovery from a municipality is limited to acts that the municipality has officially sanctioned or ordered. Id.

A policy can take the form of either (1) duly promulgated policy statements, ordinances, or regulations; or (2) a widespread, persistent practice or custom of city officials or employees. Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir.2001) (citing Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.1984)). In this case, appellants have consistently conceded that they are not alleging the existence of a custom or practice, but rather a duly promulgated policy statement, as evidenced by the APD's written standard operating procedures and the mounted unit trainer's written syllabus used to teach officers crowd-control procedures. In turn, the City urged its oral motion for a directed verdict, contending that appellants had presented no evidence of the Monell requirements to establish a policy.⁵ Although we may affirm the trial court's judgment on any theory that would support a directed verdict for the City, see Robbins, 55 S.W.3d at 746, we begin by addressing the requirement of a duly promulgated policy.

Appellants cite three forms of evidence in the record to support their argument that the City had an official policy. First, the APD's written mounted-patrol standard operating procedures state the purposes for which the mounted patrol should be used, including "[c]rowd control —any situation requiring the control, movement, or dispersal of a large group of people in an attempt to maintain order and peace," among other uses such as search and rescue, patrol, and civic educational demonstrations. Second, appellants cite a written lesson plan covering crowd-management...