ADELMAN V DART - Motion For Summary Judgement Filed by DART Officer Stephanie Branch 9/13/2017

Case 3:16-cv-02579-B Document 46 Filed 09/13/17 Page 1 of 38 PageID 474
IN THE UNITED STATES DISTRICT COURT

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

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

DALLAS AREA RAPID TRANSIT,
and STEPHANIE BRANCH, individually
and in her official capacity as a Dallas
Area Rapid Transit Police Officer
Defendants.
________________________________________________________
DEFENDANT BRANCHS BRIEF IN SUPPORT
OF HER MOTION FOR SUMMARY JUDGMENT
________________________________________________________
Respectfully submitted,
Law Office of Jane E. Bishkin

By: s/ Jane E. Bishkin
SBN: 00783663
10000 N. Central Expressway, Suite 400
Dallas, Texas 75231
(214) 212-2377 Office
(214) 343-2545 Fax
jbish@swbell.net
Attorney for Defendant S. Branch
TABLE OF CONTENTS
PAGE
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
I. Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Causes of Action Against Branch and Defenses by Branch . . . . . . . . . . . 9
III. Summary Judgment Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
IV. Summary Judgment Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
V. Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
FEDERAL CLAIMS
1. First Amendment Claims Against Branch . . . . . . . . . . . . . . . . . . . . . . . 11
A. Adelmans First Amendment claims under Title 42 U.S.C. 1983 . . . . . . 11
B. Qualified Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
C. Branch is entitled to qualified immunity because the right to photograph

emergency medical activity was not clearly established in 2016. . . . . . . . 14
1. On February 16, 2017, the Fifth Circuit held in Turner v. Lt. Driver
that the right to film or record the police was not clearly established. 15
2. The DART Police Photography Policy in effect during Adelmans

arrest for criminal trespass does not prevent Branch from being
entitled to qualified immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2. Fourth Amendment Claims Against Branch . . . . . . . . . . . . . . . . . . . . 18
A. Adelmans Fourth Amendment claim under 42 U.S.C. 1983. . . . . . . . . . . 18
B. Branch had sufficient probable cause to arrest Adelman for criminal

trespass and is entitled to qualified immunity. . . . . . . . . . . . . . . . . . . . . . . . 21
C. No excessive force was used against Adelman. . . . . . . . . . . . . . . . . . . . . . . 28
3. Punitive Damage Claims Against Branch . . . . . . . . . . . . . . . . . . . . . . . . 29
STATE LAW CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
VI. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
BRANCHS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE i

TABLE OF AUTHORITIES
CASES PAGE(S)
Abbott v. Equity Group, Inc.

2 F.3d 613 (5th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ACLU of Ill v. Alvarez
679 F.3d 583 (7th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Anderson v. Liberty Lobby, Inc
477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Ashcroft v. al-Kidd
131 S.Ct. 2074 (2011) . . . . . . . . . 15
Banks v. Gallagher
2010 U.S. Dist. Lexis 55308 (M.D. Pa. Mar. 18, 2010) . . . . . . . . . . . . . . . . 15
Bodzin v. City of Dallas
768 F.2d 722 (5th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 26
Brumfield v. Hollins
551 F.3d 322 (5th Cir. 2008).. . 14
Brumfield v. Jones
849 F.2d 152 (5th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Burge v. Parish of St. Tammany
187 F.3d 409 (5th Cir. 2003) . . . . . . 20
Celotex Corp. v. Catrett
477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). . . . . . . . . . . . . . . . 10, 11, 27
City of Lancaster v. Chambers
883 S.W. 2d 650 (Tex. 1994) 20
Club Retro, L.L.C v. Hilton
568 F.3d 181, (5th Cir. 2009) . . . .. 20
Cobarobio v. Midland County
2017 WL 3495588 (5th Cir. Aug. 15, 2017) .. . 16, 17
Cox v. Louisiana
51 F.3d 512 (5th Cir. 1995). . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Creamer v. Porter
754 F.2d 1311 (5th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Devenpeck v. Alford
543 U.S. 146, 125 S. Ct. 588 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Douglass v. United Servs. Auto Assn.
79 F.3d 1415 (5th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Evett v. DETNTFF
330 F.3d 681 (5th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Fields v. City of Philadelphia
2017 WL 2884391 (3rd Cir. 2017) . 18
Flores v. City of Palacios
381 F.3d 391 (5th Cir. 2004) . . . . . . 19, 29
Freeman v. Gore
483. F.3d 410 (5th Cir. 2007).... . . . . . . 14, 24
Glenn v. City of Tyler
242 F.3d 307 (5th Cir. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29
BRANCHS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE ii

Glik v. Cunniffe
655 F.3d 78 (1st Cir. 2011). . . . . . . 15
Gravolet v. Tassin
2009 U.S. Dist. Lexis 45876 (E.D. La. Jun. 2, 2009) . . . . . . . . . . . . . . . . . . 15
Griffin v. State
2007 WL 4282154 (Tex. App. Dallas, Dec. 7, 2007) . . . . . . . . . . . . . . . . 21
Hale v. Fish
899 F.2d 390 (5th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Harper v. Harris County
21 F.3d 597 (5th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Harlow v. Fitzgerald
457 U.S. 800, 102 S.Crt 2727 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Harrington v. Harris
118 F.3d 359 (5th Cir. 1997) . . . . . . . . . 13
Hathaway v. Bazany
507 F.3d 312 (5th Cir. 2007) . . . . . . . . . . . . .. 17
Howard v. State
227 S.W.3d 794 (Tex.App. Dallas 2006, pet. denied) . . . . . . . 13, 21
Kelly v. Borough of Carlisle
622 F.3d 248 (3rd Cir. 2010) . . . . 15
Kolstad v. Am. Dental Assn
527 U.S. 526, 119 S.Ct. 2118 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Leffall v. DISD
28 F.3d 521 (5th Cir. 1994) . . . . . . . 13
Lytle v. Bexar Cnty,
560 F.3d 404 (5th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Mace v. City of Palestine
333 F.3d 621, (5th Cir. 2009) . . . . . . 13
Maryland v. Garrison
480 U.S. 79 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Matheny v. Cnty. Of Allegheny
2020 U.S. Dist. Lexis 24189 (W.D. Pa. Mar. 16, 2010) . . . 15
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.
475 U.S. 574 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Mission Consol. ISD v. Garcia
253 S.W.3d 653 (Tex. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Montgomery v. Killingsworth
2015 WL 289934 (E.D. Pa. Jan. 22, 2015) . 15
Otwell v. State
850 S.W.2d 815 (Tex. App.- Fort Worth 1993) . . 21
Pearson v. Callahan
555 U.S. 223 (2009) . . . . . . .. . 14
Pena v. Bexar Cnty, Tx.
726 F.Supp2d 675 (W.D. Tex. Jun. 21, 2010) . . . . . . . . . . . . . . . . . . . . . . . 21, 26
Peterson v. City of Fort Worth, Tex
588 F.3d 838 (5th Cir. 2004) . . . . . . . . . 19
Pfannsteil v. City of Marion
918 F.2d 1178 (5th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Piotrowski v. City of Houston
BRANCHS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE iii

51 F.3d 512 (5th Cir. 2008). . . . . . . . 13
Poole v. City of Shreveport
691 F.3d 624 (5th Cir. 2012) . . . . . 14
Reed v. State
762 S.W.2d 640 (Tex. App. Texarkana 1988) . . . . .. 21
Ryans v. Gresham
6 F.Supp.2d 595 (E.D. Tex. Apr. 10, 1998) . . . . . . . . . . . . . . . . . . . . . . . . . 26
Skinner v. Gragg
650 Fed.Appx. 214 (5th Cir. 2016) . . . . . . . . . . ... . 26
Smith v. City of Cumming
212 F.3d 1332 (11th Cir. 2000) . . . 15
Smith v. Davis
999 S.W. 2d 409 (Tex. App. Dallas, 1999) . . . . . . . . . . . . . . . . . . . . . . . . 20
Smith v. Wade
461 U.S. 30 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Szymecki v. Houck
353 F. Appx 852 (4th Cirt. 2009) . . . . . . . . . . . . . . 15
Tarver v. City of Edna
410 F.3d 745 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Turner v. Lt. Driver
848 F.3d 678 (5th Cir. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-17
United States v. Brigham
382 F.3d 500 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v. Chavez
281 F.3d 479 (5th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v. Cooper
43 F.3d 140 (5th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v. Diebold, Inc.
369 U.S. 654 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States v. Levine
80 F.3d 129 (5th Cir. 1996) . . . . . . . 24
Williams v. Bramer
180 F.3d 699 (5th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Wells v. Bonner
45 F.3d 90 (5th Cir. 1995) . . . . ... 20
Statutes and Rules

42 U.S.C. 1983.. 9, 11-13,
15, 18, 20,
28, 29
Fed.R.Civ.Proc. 56. . . 1, 10, 17
Health Insurance Portability and Accountability Act of 1996 . . . . . . . . . . . . . . . . . . 2-5, 8, 22,
23, 25, 30
Tex. Civ. Prac. & Rem. Code Ann. 101.021(West 2011)... 30
Tex. Civ. Prac. & Rem. Code Ann. 101.057(2)(West 2011) .. 31
Tex. Civ. Prac. & Rem. Code Ann. 101.106(e-f)(West 2011).. 30, 31
Tex. Code Crim. Proc. 2.12(22)(West 2009) . 13
Texas Penal Code Ann. 30.05(West 2015) . . .. 10, 13, 20,
21, 23, 25,
BRANCHS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE iv

27
Tex. Transp. ode Ann.452.110 (West 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
N.D. Tex. Local Civ. R. 7.2 & 56.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

U.S. CONST. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12, 15,
17, 18
U.S. CONST. amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10, 12,
15, 18
U.S. CONST. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-20, 9,
11, 15, 18-
19
BRANCHS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE v

DEFENDANT BRANCHS BRIEF IN SUPPORT OF HER
MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE UNITED STATES DISTRICT COURT:
Defendant Stephanie Branch, (Branch) pursuant to FED. R. CIV. PROC. 56, N.D. Tex.
Local Civ. R. 7.2 and 56.5 and this Courts order dated December 15, 2016, submits her Brief in
Support of her Motion for Summary Judgment. Branch incorporates by reference her Appendix
in Support of her Motion for Summary Judgment, filed contemporaneously herein.
I
SUMMARY
On Tuesday, February 9, 2016 at approximately 8:00 p.m., Plaintiff Avi Adelman
(Adelman) was listening to his police scanner and heard a call for Dallas Fire Rescue (DFR) to
respond to a K2 overdose victim at Dallas Area Rapid Transits (DART) Rosa Parks Plaza
(RPP). (ECF 2, p. 5, 16). Adelman decided to go to RPP and noticed a man lying on the ground
being attended by DFR paramedics. Id. Adelman believed this incident might be of public interest
and began to photograph the scene. Id. For several minutes, Adelman photographed the incident
and took 161 photos and 4 video clips. (Branch App., p. 120, ln. 23 p. 121, ln. 6).
It is undisputed that RPP is a public transportation station located at the corner of Elm and
Lamar in downtown Dallas that is owned and maintained by DART.
DART Police Officers Branch, Robert Craig (Craig) and Elmar Cannon (Cannon),
were in full uniform, on duty and on foot patrol when they responded to a call for service of a man
passed out, lying on the ground at the RPP, near the West End station, in downtown Dallas, Texas.
(Branch App., p. 20; p. 45, 1; p. 73-scene photo, L to R-Branch, Officer Craig, victim, DFR staff,
Officer Cannon & DFR staff). At the scene, one of the paramedics said to the DART officers
theres a man taking pictures and Branch walked over to the man with the camera. (Branch
App., p. 41, 2).
BRANCHS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE 1

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

Adelman- Good
Branch - Let me see your ID

Adelman- No
Branch- let me see your Texas ID

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

Adelman- No Im not leaving this is not their property I can be here I am not leaving
Branch- No you cannot ok Sarge you hear me right Alright you cannot take picture of him
while they getting
Adelman- I can take pictures I can take pictures
Branch- Not while they are getting medical attention no you cannot
Adelman- HIPPA does not apply here
Branch- Leave. No
Adelman- No.. You will have to arrest me
Branch- Leave ok is that what you want? Have a seat..

Adelman- No.... you know HIPPA does.. the fireman know HIPPA does not apply here
Branch- No.... you cannot take pictures of him

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Adelman- I can stay on DART property ...there is no requirement that tells me I cannot
take pictures ...You cannot chase me and not everybody else...lt's called the right to
photograph in public ...
Branch- No ...
Adelman- Yes it is...My ID is in my right hand pocket under the camera .... In my wallet..
.l'm leaning over ...that's it sir yes...It's the third card on the right hand side as you flip it
open...
Branch- No, I asked you several times when I was on the phone with my Sgt.
Adelman- You do realize the right to photograph in public does not. ..
Branch- But you cannot photograph them while they are receiving medical treatment ...
Adelman- Yes I can yes I can... no there is no law...
Branch- I asked you to leave didn't I? I asked you several times to leave...
(Branch App., p. 63-66; p. 85).
Adelman had a video camera that simultaneously captured or overlapped the verbal
interaction at the scene between himself, Officer Branch and Officer Fleming as follows:
Branch-Sir leave, Sir, Sir you need to leave

Adelman-No
Branch-Sir you need to leave

Adelman-Call you supervisor
Branch-Im talking to my supervisor

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

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

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

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

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

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

Adelman-Are you arresting me?

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

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

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

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

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

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

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

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

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

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

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

Adelman-I am out here taking picturesthere no reason I have to explain past thatIve
been out here about an hour and a half. I freelanceIf someone buys my pictures then I sell
them but I dont I mean its a hard way to explain it but I do it for a living.
Fleming-Ok
Adelman-The only picture Ive sold is of a fire where they pulled out marijuana plants
thats where a house blew up it looked bad in black and white.
(Branch App., p. 58-62; p. 85).
Adelman admits Branch asked him to leave the RPP, DARTs property, nine times
and asked for his identification four times and he refused. (Branch App., p. 122, ln. 20 p.
123, ln. 15).
Adelman was informed he was being arrested for criminal trespass and Branch completed
an Affidavit of Arrest under penal code 30.05-criminal trespass. (Branch App., p. 98-99). The
Affidavit of Arrest was presented to a Dallas County magistrate who signed the affidavit. Id.
The DART police photography policy in effect on February 9, 2016 stated:
Persons may take photographic or video images, including but not limited to
film, digital or video recordings (Images) of DART Property, including but
not limited to stations, buses, trains, or other vehicles for their personal use.
Persons taking photographic or video images must not interfere with
transportation or public safety activity while taking images. DART Police
Officers may initiate an inquiry or investigation when photography or
videotaping activity is suspicious in nature or inconsistent with this policy.
(Branch App., p. 26, 2).
On February 12, 2016, DART Chief of Police James Spiller (Spiller) initiated an
internal affairs investigation of Adelmans arrest because Branchs audio recording indicated
the reason she made contact with Adelman was due to him taking pictures of a person
receiving medical treatment by DFR. (Branch App., p. 16).
On February 16, 2016, Chief Spiller wrote a letter to Adelman informing him the
criminal trespass case would be dismissed and that a review of the arrest revealed that it
was not consistent with DART Police policies and directivesAlthough the officers actions
appear to be within her authority, they are not in line with department directives concerning
photography on DART property. (Branch App., p. 83).
DART Police Office of Professional Standards (OPS), Officer Roy Wilt completed an
investigation of the February 9, 2016 arrest of Adelman, sustained various policy violations against
Branch and concluded:
After careful review of interviews and all documents available, DART Police
policy violations were committed. There is sufficient evidence that shows Officer
Branch did violate DART Police procedure when she failed to gather enough
articulable facts and did not establish probable cause to effect the arrest. Adelman
was taking pictures of an emergency medical scene which is his right according to
DARTs photography policy Adelman was not breaking any laws and would not
lead a reasonable person to believe that he was committing a crime or had
committed a crime or about to engage in committing a crime. Branchs initial
interaction with Adelman was based on her mistaken belief that HIPPA and
therefore the arrest of Adelman for criminal trespass was not based on sufficient
probable cause.
A law enforcement officer has probable cause to detain a person if at the time of
detainment, he has knowledge that warrant a prudent persons belief that the person
detained has been or is about to be engaged in criminal activity or is a danger to
themselves or others.

Adelman is viewed simply taking photographs of a person in a public place on
DART property who appeared to have passed out. Adelman is never viewed less
that approximately 10 feet from the actual medical scene. Officers Cannon, Craig
or DFR personnel did not witness Adelman ever interfere with medical treatment
or medical personnel.
In the field officers have to make decisions in circumstances that are tense,
uncertain, and rapidly evolving to each particular situation. Police officers are
given breathing room to make reasonable but mistaken judgments about open legal
questions. Police officers in the field aspire to make correct decisions 100% of the
time, however, real time situations do not offer the benefit of 20/20 hindsight and
officers often fall short of this aspiration despite their best good faith efforts.
(Branch App., p. 9-10).
Because of the sustained findings of the internal affairs investigation, Branch was
suspended for 3 days. (Branch App., p. 100-02).
II.
CAUSES OF ACTION AGAINST BRANCH AND DEFENSES BY BRANCH
Under Count I, Adelman alleges a First and Fourteenth Amendment violation pursuant to
1983 by Branch. (ECF 2, p. 10, Count I). Adelman alleges [o]bserving and photographing
emergency medical activity is protected by the free speech and free press clauses of the First
Amendment as applied to DART under the Fourteenth Amendment. (ECF 2, p. 9-10).
Adelman alleges Branchs conduct violated Adelmans clearly established First Amendment
rights of which Officer Branch knew, or of which a reasonable police officer should have known,
making her liable under 42 U.S.C. 1983. Id. Adelman alleges Branch acted with evil motive
or intent and/or reckless and callous indifference to Adelmans First Amendment rights entitling
him to punitive damages. Id.
Under Count II, Adelman alleges Branch arrested him on February 9, 2016 without a
warrant and without probable cause and violated Adelmans clearly established Fourth
Amendment rights of which Branch knew or of which a reasonable officer should have known
making her liable under 42 U.S.C. 1983. (ECF 2, p. 11-12, Count II). Adelman alleges Branch

acted with evil motive or intent and/or reckless and callous indifference to Adelmans Fourth
Amendment rights entitling him to punitive damages. Id.
Branch asserted that on February 9, 2016 she was employed as a DART police officer,
acting in the course and scope of her employment with DART when she believed she had arguable
probable cause, good faith belief of arguable probable cause or reasonably mistaken with the
existence of probable cause when she arrested Adelman for criminal trespass under penal code
30.05 and therefore is entitled to qualified immunity. (ECF 6, p. 6, Affirmative Defenses, 1-7).
III.
SUMMARY JUDGMENT RECORD
Branchs1 summary judgment record is submitted as a separately filed Appendix and the
Appendix is incorporated by reference as if fully set forth herein. Branch incorporates by
reference, as if set forth herein, DARTs motion for summary judgment, DARTs brief in support
of its summary judgment and DARTs appendix in support of its summary judgment as to any of
Adelmans claims against her.
IV.
SUMMARY JUDGMENT STANDARD
Summary judgment shall be rendered when the pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S.Ct. 2548, 2552-54, 91 L.Ed.2d 265 (1986); FED. R.
CIV. P. 56. All the evidence and the reasonable inferences to be drawn therefrom must be viewed
in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369
U.S. 654, 655 (1962). The moving party bears the burden of informing the district court of the
1
Branch requests the Court take judicial notice of the pleadings in Case No. 3:16-cv-02579-B, specifically Branchs
Original Answer (ECF 6) wherein Branch has pled defenses of qualified immunity.
basis for its belief that there is an absence of a genuine issue for trial, and of identifying those
portions of the record that demonstrate such an absence. Celotex, 477 U.S. at 323.
Once the moving party has made an initial showing, the party opposing the motion must
come forward with competent summary judgment evidence of the existence of a genuine fact issue.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party
defending against the motion for summary judgment cannot defeat the motion unless he provides
specific facts that show the case presents a genuine issue of material fact, such that a reasonable
jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary
judgment. Id. at 248-50; Abbott v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other
words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat
a motion for summary judgment. Douglass v. United Servs. Auto Assn, 79 F.3d 1415, 1429 (5th
Cir. 1996). If the opposing party fails to make a showing sufficient to establish the existence of
an element essential to his case, and on which he bears the burden of proof at trial, summary
judgment must be granted. Celotex, 477 U.S. at 322-23.
V.
ARGUMENT AND AUTHORITIES
1. First Amendment Claims Against Branch.
A. Adelmans First Amendment claim under 42 U.S.C. 1983.

Adelmans complaint against Branch specifically alleges:
30. Observing and photographing emergency medical activity in public is a legitimate

means of gathering information for public dissemination that is protected by the free speech
and free press clauses of the First Amendment to the United States Constitution, as applied
to the State of Texas and instrumentalities of the state such as DART under the Fourteenth
Amendment.
31. On February 9, 2016, Officer Branch arrested Adelman for taking photographs in a
public place. As DARTs investigation confirmed, Adelman is viewed simply taking
photographs of a person in a public place.

32. Officer Branchs conduct violated Adelmans clearly established First Amendment
rights, of which Officer Branch knew, or of which a reasonable police officer should have
known, making her liable under 42 U.S.C. 1983.
(ECF 2, p. 10-11).
On February 9, 2016, Adelman was asked what he was doing at RPP:
Fleming-What were you doing here?

Adelman-I am out here taking picturesthere no reason I have to explain past thatIve been out
here about an hour and a half. I freelanceIf someone buys my pictures then I sell them but I
dont I mean its a hard way to explain it but I do it for a living.
Fleming-Ok
Adelman-The only picture Ive sold is of a fire where they pulled out marijuana plants thats where
a house blew up it looked bad in black and white.
During his deposition, Adelman further clarified why he was at RPP station on February 9,
2016:
Q: So your ---purpose for going downtown was not to protest the police?
A: No, sir.
Q: Your purpose for going downtown was not to criticize the police?
A: No, sir
Q: So you purpose for going downtown was to photograph emergencymedical emergency
scenes?
A: Yes, sir.
Q: and you indicated in your discovery responses that you took 160 photos.
A: 161 photos and 4 video clips.
(Branch App., p. 120, ln. 7-15; p. 121, ln. 4-6).
The First Amendment to the United States Constitution provides, in relevant part, that the
government shall make no lawabridging the freedom of speech, or of the press. U.S.
CONST. amend. I. Despite this broad prohibition, protection of free speech or press is not absolute.
Cox v. Louisiana, 379 U.S. 536, 554 (1965) (The right of free speech and assembly, while
fundamental in our democratic society, still does not mean that everyone with opinions or beliefs
to express may address a group at any public place and at any time.).

Section 1983 provides that any person who, under color of state law, deprives another of
any rights, privileges or immunities secured by the Constitution and laws shall be liable to the
party injured in an action at law, suit in equity, or other proper proceeding for redress
Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997). Section 1983 does not create any
substantive rights, it simply provides a remedy for the rights designated therein. Id. Therefore, an
underlying constitutional or statutory violation is a predicate to liability under 1983. Id.
To state a claim under 1983, a plaintiff must (1) allege a violation of rights secured by the
Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was
committed by a person acting under color of state law. Leffall v. DISD, 28 F.3d 521, 525 (5th Cir.
1994). The first inquiry is whether plaintiff has alleged a violation of a constitutional right at all.
Piotrowski v. City of Houston, 51 F.3d 512, 515 (5th Cir. 1995).
B. Qualified Immunity.
The DART Police Department was established pursuant to Texas Transportation Code
452.110 and DART police officers have been judicially recognized as peace officer pursuant to
Texas Code of Criminal Procedure, Art. 2.12(22). Howard v. State, 227 S.W.3d 794, 798-99 (Tex.
App.-Dallas 2006, pet. Denied); Tex. Transp. Code Ann. 452.110 (West 2015); Tex. Code Crim.
Proc. Ann., art. 2.12 (22) (West 2015).
On February 9, 2016, Officer Branch was on duty, in full uniform and within the course and
scope of her employment with DART as a police officer when she encountered and arrested
Adelman for criminal trespass under penal code 30.05. (DART App. 000199-201). Branch
asserted the defense of qualified immunity. (ECF 6, p. 6, 2).
Qualified Immunity protects police officers from suit unless their conduct violates a clearly
established constitutional right. Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir. 2003).
Qualified immunity balances two often conflicting interest - the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably. Pearson v.
Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 815 (2009). Through qualified immunity,
government officials conducting discretionary functions, such as the decision to arrest, are shielded
from liability for civil damages insofar as their conduct does not (1). violate clearly established
statutory or constitutional rights; and (2). of which a reasonable person would have known.
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, (1982).
If a court determines that the alleged conduct did not violate a constitutional right, the inquiry
ceases because there is no constitutional violation for which the government official would need
qualified immunity. Lytle v. Bexar Cnty., 560 F.3d 404, 410 (5th Cir. 2009). If, however, the
alleged conduct amounts to a constitutional violation, then a court must ask whether the right was
clearly established at the time of the conduct. Id.
Qualified immunity allows for officers to make reasonable mistakes about whether their
conduct violates the law, and an officers mistake is reasonable when there are insufficient indicia
that the conduct in question was illegal. Freeman v. Gore, 483, F.3d 404, 410 (5th Cir. 2007).
Courts cannot ignore that qualified immunity gives ample room for mistaken judgments by
protecting all but the plainly incompetent or those who knowingly violate the law. Poole v. City
of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).
Once the defendant raises the qualified immunity defense, the burden shifts to the plaintiff to
rebut this defense by establishing that the officials allegedly wrongful conduct violated clearly
established law. Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).
C. Branch is Entitled to Qualified Immunity because the Right to Photograph

Emergency Medical Activity Was Not Clearly Established.
For a right to be clearly established, the contours of the right must be sufficiently clear that a
reasonable official would understand that what she is doing violates that right. Harlow at 818.
Stated differently, there must be sufficient precedent at the time of the action, factually like the

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

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

Adelmans arrest in 2016 and therefore Adelman cannot satisfy his burden of establishing that she
is not entitled to qualified immunity.
Branch further asserts that even if Adelman attempts to distinguish Turner and Cobarobio from
the facts of this case, qualified immunity requires Adelman to make a showing that the right to
film the police or the right to photography emergency medical activity was a clearly established
right on February 9, 2016. An arguably valid public policy concern regarding police behavior
does not create a clearly established right to film the police or photograph emergency medical
activity where there was otherwise none. See, Hathaway v. Bazany, 507 F.3d 312, 320 (5th Cir.
2007).
2. The DART Police Photography Policy in effect during Adelmans arrest for criminal
trespass does not prevent Branch from being entitled to qualified immunity.
On June 4, 2014, Spiller issued a DART police photography policy, that was in effect when
Adelman was arrested for criminal trespass, which in relevant part states:

Persons may take photographic or video images, including but not limited to
film, digital or video recordings (Images) of DART Property, including but
not limited to stations, buses, trains, or other vehicles for their personal use.
Persons taking photographic or video images must not interfere with
transportation or public safety activity while taking images. DART Police
Officers may initiate an inquiry or investigation when photography or
videotaping activity is suspicious in nature or inconsistent with this policy.
Images of designated restricted areas (e.g. areas not open to the public, an area
designated for DART Employees only, etc.) are not permitted. Any person
observed taking images on, in, or of a restricted area may be subject to law
enforcement action as appropriate, provided there is no photography signage
posted.
Except as otherwise permitted by law (e.g. in conjunction with a lawful arrest,

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

(Branch App., p. 26, 2-4).

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

A. Adelmans Fourth Amendment claim under 42 U.S.C. 1983.
Adelmans complaint against Branch specifically alleges:
Under the Fourth Amendmentas applied toDART under the Fourteenth

Amendment, Adelman has a right to be free from unreasonable searches and seizures,
including arrest that is supported neither by a warrant nor probable cause.
On February 9, 2016, Officer Branch arrested Adelman without a warrant and without
probable cause. As DARTs investigation confirmed, Officer Branch did not establish
Probable cause to effect the arrest of Adelman, and therefore the arrest of Adelman
for criminal trespass was not based on probable cause.
Officer Branchs conduct violated Adelmans clearly established Fourth Amendment

right, of which Officer Branch knew, or of which a reasonable police officer should
have known, making her liable under 42 U.S.C. 1983.

Officer Branch acted with evil motive or intent and/or reckless and callous indifference
to Adelmans Fourth Amendment rights, entitling Adelman to punitive damages.
(ECF 2, p. 11-12).
Branch asserted her arrest of Adelman was supported by arguable probable cause, good
faith belief of arguable probable or reasonably mistaken with the existence of probable cause and
pled the defense of qualified immunity. (ECF 6, p. 6, 2 & 4 ).
The Fourth Amendment protects the right of the people to be secure in their persons,
against unreasonable searches and seizures. U.S. CONST. amend. IV. The protections of the
Fourth Amendment extend to the states pursuant to the Fourteenth Amendment. Peterson v. City
of Fort Worth, Tex. 588 F.3d 838, 845 (5th Cir. 2009). The Fourth Amendment is concerned with
ensuring that the scope of a given detention or arrest is reasonable under the totality of the
circumstances. United States v. Brigham, 382 F.3d 500, 508 (5th Cir. 2004). A law enforcement
officer may temporarily detain a person when the officer has a reasonable articulable suspicion
that a person has committed or is about to commit a crime. United States v. Chavez, 281 F.3d 479,
485 (5th Cir. 2002). An arrest must be based on probable cause. United States v. Cooper, 43 F.3d
140, 146 (5th Cir. 1995).
Probable cause exists when the totality of the facts and circumstances within a police
officers knowledge at the moment of an arrest are sufficient for a reasonable person to conclude
that the suspect had committed or was committing an offense. Flores v. City of Palacios, 381 F.3d
391, 402 (5th Cir. 2004). To satisfy the Fourth Amendment, the arresting officer must be able to
articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity.
Chavez at 485. A mistake reasonably made as to probable cause justifies qualified immunity.
Tarver v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005). Courts have recognized the need to

allow some latitude for honest mistakes that are made by officers in the dangerous, tense and
difficult process of making arrests. Maryland v. Garrison, 480 U.S. 79, 87 (1987).
The court must apply an objective standard and find that probable cause existed if the
officer was aware of facts justifying a reasonable belief that an offense was being committed. Club
Retro, L.L.C v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009). If there is probable cause for any of the
charges made, then the arrest was supported by probable cause and there is no claim for false arrest.
See Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995). An act is discretionary if it involves personal
deliberation, decision-making, and judgment. City of Lancaster v. Chambers, 883 S.W.2d 650,
1994 (Tex. 1994). Texas courts have consistently held that a law enforcement officers decision to
file a criminal complaint is a discretionary act. Smith v. Davis, 999 S.W. 2d 409, 414 (Tex. App.
Dallas, 1999).
To support a claim for unlawful arrest, a plaintiff must show that he was arrested without
probable cause. Burge v. Parish of St. Tammany, 187 F.3d 452, 482 (5th Cir. 1999). Probable
cause is a defense to a 1983 claim for false arrest. Pfannsteil v. City of Marion, 918 F.2d 1178,
1183 (5th Cir. 1990). Even if there is no probable cause to arrest the plaintiff for the crime charged,
proof of probable cause to arrest the plaintiff for a related offense also constitutes a defense. Id.
The offense establishing probable cause need not even be closely related to or based on the same
conduct that motivated the arresting officer. Devenpeck v. Alford, 543 U.S. 146, 152-154, 125
S.Ct. 588, 593-94 (2004). Probable cause is determined on the basis of facts available to the officer
at the time of the arrest and an officer may be shielded from liability even if she reasonably but
mistakenly concludes that probable cause is present. Evett v. DETNTFF 330 F.3d 681, 688 (5th
Cir. 2003). An acquittal or dismissal of the criminal charge does not necessarily signal an absence
of probable cause for an arrest because the standards for a determination of probable cause and for
a criminal conviction are markedly different. Brumfield v. Jones, 849 F.2d 152, 155 (5th Cir. 1988).

A warrantless misdemeanor arrest represents no violation of a suspects Fourth
Amendment right if the arresting officer possesses probable cause. Bodzin v. City of Dallas, 768
F.2d 722, 724, (5th Cir. 1985).
B. Branch had sufficient probable cause to arrest Adelman for criminal trespass.
Texas Penal Code 30.05, titled Criminal Trespass provides that a person commits the offense
of criminal trespass if he enters or remains in a building or on property of another without effective
consent and he (1) had notice that the entry was forbidden; or (2) received notice to depart but failed
to do so. Tex. Penal Code Ann 30.05(a)(West 2015). Notice means oral or written
communication by the owner or someone with apparent authority to act for the owner. Id.
30.05(b)(2). The offense of criminal trespass consists of the following elements: (1) a person; (2)
without effective consent; (3) enters or remains on the property or in a building of another; (4)
knowingly or intentionally or recklessly; and (5) had notice that entry was forbidden or received
notice to depart but failed to do so. Pena v. Bexar Cnty, Tx., 726 F.Supp.2d 675, 692 (W. D. Tex.
Jun. 21, 2010).
The purpose of the criminal trespass statute is not to regulate speech. Tex. Penal Code Ann.
30.05 (West 2015). The purpose of the criminal trespass statute is to regulate conduct. Otwell v.
State, 850 S.W2d 815, 818 (Tex. App.-Fort Worth 1993). A general trespass statute may be
constitutionally applied, even to those who trespass to communicate, as long as the statute is applied
without discrimination and is not used for the primary purpose of suppressing speech. Reed v. State,
762 S.W.2d 640, 644 (Tex. App.- Texarkana 1988).
RPP is public property used for public transportation services that is owned and maintained by
DART. See Howard at 798; See also Griffin v. State, 2007 WL 4282154, *2-4 (Tex. App. Dallas
Dec. 7, 2007) (Affirming a criminal trespass arrest by DART police for criminal trespass at the
DART West End station under penal code 30.05).

It is undisputed that on February 9, 2016 at approximately 8 p.m. DART Officers Branch,
Cannon and Craig were at RPP located at 901 Elm in downtown Dallas to inquire about a male
passed out and needing medical treatment. DFR was also on the scene. (ECF 2, p. 5, 16); (Branch
App. p. 20, 1). One of the DFR staff stated theres a man taking pictures and Branch decided
to approach the man with the camera-Adelman. (Branch App. p. 41, 2). When asked, what was
the reason for her initial contact with Adelman, Branch stated:
He was moving and walking towards the medical scene. I did not know who and what he
would do to the victim, officers, paramedics or myself. He was getting to close. I did not
[know] if Adelman was the cause of the white male being in need of medical help. Avi
Adelman would not communicate his reasons for wanting access to the medical scene or
breach of my set perimeter.
Due [to] the ambush and killing of 6 to 8 police officers2 while on duty across the USA, I
felt that protecting my co-workers back while they worked the medical scene was very
important and a safety concern.
Adelman was a suspicious person to me. He kept wanting to get access and too close to
officers and paramedics treating the white male. Adelmans behavior and actions were
suspicious and dangerous to people treating the white male. Adelman wanted with in arm
reach of the medical situation. This was not permitted.

In recordings of the incident, Branch makes the following statements:
Branch- No you cannot ok Sarge you hear me right Alright you cannot take picture of him
while they getting
Adelman- I can take pictures I can take pictures
Branch- Not while they are getting medical attention no you cannot
Adelman- HIPPA does not apply here
Adelman- No.... you know HIPPA does.. the fireman know HIPPA does not apply here
Branch- No.... you cannot take pictures of him

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

Branch-ok
2
This statement by Branch was made in February 2016 and does not refer to the July 7, 2016 Dallas police shooting
incident that resulted in the death of 4 Dallas Police Officers and 1 DART Police Officer at or near this location.
Adelman-And he will tell you I have a right to take pictures in public

Branch- Not of someone getting medical treatment
When Branch was asked what her knowledge or understanding of HIPPA law and taking
pictures at a medical emergency scene was, she responded:
My understanding is while a person is getting treatment that person has a right to privacy.
His or her medical treatment, medical condition and personal information is private. They
have a reason[able] right to privacy. Pictures while being treated by medical DFR can
show a lot to the public when photographers displays their medical treatment and medical
conditions to the public when they thought it was secure. People have a right to private
medical treatment from DFR. They have a right to not have their medical business
exposed. HIPPA affords a person a zone of privacy that protect on [them] from others
obtaining his or her information during medical treatment. Adelman pictures could expose
really personal and private information that the white male could not protect while passed
out or unable to defend.
(Branch App., p. 35, No. 14).
When asked what her knowledge or understanding was on the DART Police photography
policy, Branch indicated she did not receive or know about the June 4, 2014 memo on the police
photography policy issued by Chief Spiller because she was out on sick leave when this policy
came into effect. (Branch App., p. 2, 8; p. 36, No. 15; p. 134, ln. 6-12). Branch explained that
from around March 2014 she was out on sick leave for approximately 22 months and did not see
or know about the DART police photography policy. (Id. ; p. 155, ln. 17- p. 156, ln. 12). Chief
Spiller explained that the training on the June 4, 2014 memo on the police photography policy
consisted of the policy being read for 5 consecutive days in roll call or detail where officers
assemble prior to going out to work, where they get their work assignments; as well as it was
placed in the Chiefs Corner bulletin on the third floor in the eating area and on the second floor
on the Chiefs Corner in the officer area and it was also placed on the L-drive (computer drive
available to all officers). (Branch App., p. 172, ln. 4-20). Because Branch was out on sick leave
when the June 4, 2014 police photography policy was distributed, it is likely she was not familiar

with this policy on February 9, 2016 when she encountered Adelman at the RPP and was mistaken
that HIPPA applied to the situation with Adelman.
Branch approached Adelman because he was moving and walking towards the
medical scene; she did not know who and what he would do to the victim, officers,
paramedics or myself; Adelman would not communicate his reasons for wanting access to
the medical scene or breach of my set perimeter; she felt that protecting my co-workers
back while they worked the medical scene was very important and a safety concern;
Adelman was a suspicious person to me and he kept wanting to get access and too close
to officers and paramedics treating the white male. (Branch App., p. 32, No. 1).
Once Branch made the initial contact with Adelman it is established by Branchs recording
of the incident; Adelmans video and audio recording of the incident; and by Adelmans own
admission that Branch asked Adelman to leave DART property nine times and asked him to
provide identification four times and he refused to follow these police orders or directives. (Branch
App., p. 122, ln. p. 20 p. 123, ln. 15; p. 58-66). Branch did not prevent Adelman from taking
pictures as Adelman admits he took 161 photos and 4 video clips; Branch also did not deny
Adelman total access to the scene because she informed Adelman he could take pictures from the
sidewalk. (Branch App., p. 64; p. 133, ln. 13-24).
The uncontroverted evidence established that Adelman remained on DART property,
without effective consent and was given notice nine times to depart but failed to do so. Further,
the uncontroverted evidence also established that Adelman refused to provide identification when
he was asked on four occasions.
Probable cause exists when the totality of facts and circumstances within a police officers
knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the
suspect had committed or was committing an offense. United States v. Levine, 80 F.3d 129, 132
(5th Cir. 1996). Even if probable cause does not exist, which it does in Adelmans arrest for
criminal trespass, qualified immunity protects officers who reasonably but mistakenly violate a
plaintiffs rights. Freeman at 415.
Branch approached Adelman and informed him to stay back and that he was not allowed
to take photos of the passed-out victim because she mistakenly believed HIPPA applied and she
was on sick leave when the June 4, 2014 DART police photography policy was issued. Branch
reasonably and in good faith believed Adelman was at RPP without effective consent in violation
of penal code 30.05, thus establishing probable cause, arguable probable cause or mistaken belief
on the existence of probable cause to arrest Adelman for criminal trespass. Branch has established
she is entitled to qualified immunity.
DARTs retained expert Albert Ortiz (Ortiz) reviewed the incident involving Branch and
Adelman and provided his opinion on the reasonableness of Branchs actions and on the existence
of probable cause. (Branch App., p. 177-180). In summary, Ortiz states:

The Plaintiff admits Branch, an agent of DART, ordered him to leave the property
nine times but he refused. Branch did not stop the Plaintiff from taking pictures she just
ordered him to do it off DART property. He refused. The Plaintiff ignored four requests
by Branch to provide his identification. She exercised her discretionary authority and
arrested him for Criminal Trespass. It is my opinion that any officer in the same or similar
circumstances as Officer Branch could reasonably believe probable cause existed to believe
the Plaintiff had committed Criminal Trespass and could have acted in the same or similar
manner as Officer Branch.

Chief Spiller also provided testimony on his opinion on the reasonableness of Branchs
actions and on the existence of probable cause:
Q. what is your position in reference to her [Branch] approaching him [Adelman] in

reference to him taking photographs -taking photos of the scene?
A. She [Branch] mistakenly approached him [Adelman] based upon HIPPA. She
thought there was an interferenceIts my belief she thought there was an interference
because of HIPPA rules. Upon asking him to leave and asking him for ID, which he
failed to produce, he failed to leave. She asked numerous times. Then thats where I
think the probable cause came in for the arrest, his failure to depart the area when she
had directed him to.

Q. as the Chief of Police for the DART Police Department, in reference to criminal
trespasses, in your experience, how many times do you or other officers that youre
aware of usually ask people to leave, in a criminal trespass circumstance, before they
take some kind of action?
A. Normally two.
Q. So in your position as chief of police, you believe that its reasonable that, after
you ask somebody to leave DART property twice, that its reasonable that they may
use discretion and make an arrest for criminal trespass?
A. Yes.
(Branch App., p. 168, ln 14 p. 169, ln. 2; p. 169, ln. 16-22; p. 170, ln. 21 p. 171, ln. 2).
Based on the totality of circumstances, Branchs actions toward Adelman were based on
probable cause, reasonable and did not violate Adelmans Fourth Amendment right. See Pena at
693-94. (Pena refused to leave the courthouse after being asked, refused to provide his
identification and was arrested for criminal trespass. The officers who arrested Pena were entitled
to qualified immunity because they reasonably perceived that Pena was in the courthouse without
effective consent when they arrested him); See also; Skinner v. Gragg, 650 Fed.Appx. 214, 215-
16(5th Cir. 2016) (Skinner was arrested for criminal trespass after refusing to leave a mall after
being asked to leave by security. The charge was later dismissed and Skinner sued alleging
violation of his Fourth Amendment and other Texas tort claims. Officer Gragg had been informed
by radio that Skinner was refusing to leave and when he arrived at the mall, Skinner was still
present and he was arrested for criminal trespass. Gragg was entitled to qualified immunity
because a reasonable officer could have concluded that there was probable cause to arrest Skinner
for criminal trespass); Ryans v. Gresham, 6 F.Supp.2d 595, 596-03 (E. D. Texas Apr. 10, 1998)
(Ryans refused to leave a school where she was observing how her son who was being treated by
classmates. Ryans was asked several times to leave the school and she refused. Police were called
to the school and Ryans still refused to leave alleging she had permission and a right to be present
at the school. Ryans was arrested for criminal trespass and the charge was later dismissed. Ryans
sued city, school district and police officer alleging violations of her First, Fourth and Fourteenth

Amendment rights. Court held police officer had probable cause to arrest Ryans for criminal
trespass because despite having permission, she was ordered off the premises, Ryans remained and
a reasonable prudent person in this situation would have concluded the elements of criminal
trespass were present); and Bodzin v. City of Dallas 768 F.2d 722 (5th Cir. 1985) (Bodzin was
gathering signatures urging the Dallas City Council to grant a special property tax for homeowners
and set up a chair, signs and card table on a sidewalk near a shopping center on Mockingbird Lane.
A manager of Skaggs grocery demanded Bodzin leave, he refused and police were called. Police
arrested Bodzin for criminal trespass and the charges were later dropped. Bodzin sued the police
officers, City of Dallas and Skaggs asserting unconstitutional arrest, violation of his First
Amendment rights and related state law claims. The court held that because Bodzin refused to
leave after he was told he wasnt welcomed, the officers had probable cause to believe Bodzin had
committed all the elements of criminal trespass and he could not recover on any of his claims).
The evidence presented from Branch, Spiller and Ortiz establish the actions taken by
Branch were reasonable and in compliance with the police departments policies of probable cause
for an arrest and both Spiller and Ortiz stated that any officer in the same or similar circumstances
as Branch could reasonably believe probable cause existed and it was reasonable to effect the arrest
of Adelman for criminal trespass under penal code 30.05.
Adelman cannot present any evidence to contradict the probable cause basis for his arrest
for criminal trespass because of his admission that he was asked to leave RPP, DART property
nine times and refused; and he was asked for ID four times and he also refused. When facing
summary judgment, the plaintiff cannot rely on the pleadings, but must go beyond them and by
his own affidavit or deposition, expert testimony, answers to discovery or admissions on file to
designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324.
Adelman has not done so and the only competent summary judgment before the court shows

probable cause existed for Branchs actions, there was no violation of Adelmans Fourth
Amendment right and Branch is entitled to qualified immunity.
C. No excessive force was used against Adelman
Adelman alleges ... Officer Branch escalated the situation and began demanding
identification from Adelman and then used force to grab Adelman by the wrist and restrain him
with double locked handcuffs. (ECF 2, p. 6, 18). To the extent, Adelman argues that because
Branch lacked reasonable suspicion or probable cause to detain or arrest him, any force used
against him was excessive, Branch asserts Adelmans physical injury, if any was de minimis.
To prevail on an excessive force claim, a plaintiff must show: (1) an injury, (2) which
resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness
of which was clearly unreasonable. Harper v. Harris Cnty, 21 F.3d 597, 600 (5th Cir. 1994).
Although the courts no longer require significant injury for excessive force claims, the injury
must be more than de minimis. Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999). The Fifth
Circuit, has heled that handcuffing too tightly, without more, does not amount to excessive force.
Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001).
In relation to his alleged mental and physical damages or injuries Adelman testified:
Q. ..since February 9th of 2016, have you sought the services of a psychologist?

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

Q. Did you have any physical injuries?
A. No. sir.
(Branch App., p. 124, ln. 11 p. 125, ln. 2; p. 126, ln. 16-19).

Because Adelman does not have any degree of physical harm greater than de minimis from
the handcuffing or has established that he suffered psychological injury from the handcuffing or
has submitted evidence that the handcuffing was excessive or unreasonable, he cannot establish
that his constitutional rights were violated as needed to satisfy the injury requirement for any 1983
claim. City of Tyler at 314; Flores v. City of Palacios, 381 F.3d 391, 400-01 (5th Cir. 2004).
Branch is entitled to qualified immunity on Adelmans excessive force claim.
3. Punitive Damages Claim Against Branch
In his First and Fourth Amendment claim against Branch Adelman alleges, Branch
acted with evil motive or intent and/or reckless and callous indifference of Adelmans First [and]
Fourth Amendment rights, entitling Adelman to punitive damages. (ECF 2, p. 11, 34; p. 12,
40).
Although punitive damages are not recoverable in Section 1983 claims against a
municipality or it officials acting in their official capacities, punitive damages can be recovered in
Section 1983 individual-capacity claims. Smith v. Wade, 461 U.S. 30, 35, (1983). Punitive
damages may be awarded in 1983 cases when the defendants conduct is shown to be motivated
by evil motive or intent, or when it involves reckless or callous indifference to the federally
protected rights of others. Id. at 56. Reckless indifference has been described by the Supreme
Court as subjective consciousness of a risk of injury or illegality and a criminal indifference to
civil obligations. Kolstand v. Am. Dental Assn, 527 U.S. 526, 536, 119 S.Ct. 2118 (1999).
Punitive damages are never available as a matter of right, no matter how egregious the defendants
conduct may be. Hale v. Fish, 899 F.2d 390, 404 (5th Cir. 1990). An award of punitive damages
is a harsh remedy and normally is not favored by law and its goal is to punish as well as to deter
the commission of similar offenses in the future. Creamer v. Porter, 754 F.2d 1311, 1319 (5th
Cir. 1985).

Here, Branch had never met Adelman before February 9, 2016; Branch was acting in her
official capacity as a DART police officer when she encountered Adelman; she did not use her
Taser, baton or firearm; she asked Adelman to leave DART property nine times and asked for his
ID four times and he refused; he was given an option of taking photos from the sidewalk; no photos
were deleted from Adelmans camera; no video clips were deleted; his camera and other property
was safeguarded; it was explained to him why he was arrested; Adelman received no physical
injuries or sought any treatment from a mental health provider as a result of the arrest; the criminal
trespass charge against Adelman was dismissed; an internal affairs investigation was initiated and
completed by DART police; and Branch was issued disciplinary action and retraining on the
DART police photography policy. In addition, as discussed above, the First Amendment right to
photograph medical emergency activity was not clearly established on February 9, 2016 and
Branch had probable cause to arrest Adelman for criminal trespass, despite that her initial
encounter with Adelman was based on her mistaken belief that HIPPA applied. Here, Branch was
exercising a narrowly tailored law enforcement interest of setting up a perimeter, protecting the
safety of the passed-out victim, DFR and other officers at the scene. Branch did not foreclose all
of Adelmans options because he was asked to step back, he could continue taking photos from
the sidewalk and Adelman did take 161 photos and 4 video clips of the scene.
Adelman cannot satisfy his burden of establishing that Branch acted with a reckless or
callous disregard for Adelmans rights or that Branchs actions were motivated by an evil motive
or intent. Therefore, Adelman is not entitled to punitive damages under Section 1983 against
Branch in her individual capacity.
STATE LAW CLAIMS AGAINST BRANCH
To the extent, Adelman is alleging any state law claims against Branch for assault, battery,
false arrest, damage to his reputation or any other intentional tort claim, Branch asserts she is
entitled to individual, official or governmental immunity on any state law claims alleged by
Adelman against her. (ECF, Doc 6, p. 6, 2-3). The Texas Tort Claims Act (TTCA) provides a
limited waiver of immunity for certain suits against Texas governmental entities and their
employees. Tex. Civ. Prac. & Rem. Code 101.021 & 101.106. If a plaintiff sues both a
governmental entity and any of its employees under the TTCA, as Adelman has in this case, the
employee shall immediately be dismissed on the filing of a motion by the government unit. Id. at
101.106; Mission Consol. ISD v. Garcia 253 S.W.3d 653, 655-57 (Tex. 2008) (The TTCAs
apparent purpose was to force a plaintiff to decide at the outset whether an employee acted
independently and is thus solely liable, or acted within the general scope of her employment such
that the governmental unit is vicariously liable). Here, Adelman sued DART and Branch, an
employee of DART, so Branch is entitled to dismissal from any state law claims pursuant to
101.106. See Garcia at 658-59.
In addition, Branch asserts the TTCA expressly does not apply to claims arising out of
assault, battery, false imprisonment or any other intentional tort. Tex. Civ. Prac. & Rem. Code
101.057(2). This means that any claims by Adelman against Branch that are based on any
intentional tort does not fall under the purview of the TTCA and are precluded by DARTs
governmental immunity that is extended or applicable to Branch as an employee of DART based
on conduct within the general scope of Branchs employment. Branch seeks a dismissal of any
state law claims alleged by Adelman against her.
CONCLUSION
Discovery has now closed on this case and an opportunity for a curative amendment would
be futile. Branch seeks a summary judgment on all of Adelmans claims against her.
WHEREFORE, PREMISES CONSIDERED, Branch request this Motion be granted, that
Adelmans claims against Branch be dismissed with prejudice and that Branch be granted such
other and further relief to which she may show herself justly entitled, at law and in equity.

Respectfully submitted,
Law Office of Jane E. Bishkin

SBN: 00783663
10000 N. Central Expressway, Suite 400
Dallas, Texas 75231
(214) 212-2377 Office
(214) 343-2545 Fax
jbish@swbell.net
CERTIFICATE OF SERVICE
This is to certify that on September 13, 2017, a copy of this document was served via the
Courts ECF filing system or by facsimile upon Plaintiffs Counsel: Tyler J. Bexley, Reese,
Gordon, Marketos, LLP, 750 N. Saint Paul Street, Suite 610, Dallas, Texas 75201-3202. Fax: 214-
501-0731, tyler.bexley@rgmfirm.com and Gene Gamez, Dallas Area Rapid Transit, P.O. Box
660163, Dallas, Tx. 75231. Fax: 214 281-0281; ggamez@dart.org.

Jane E. Bishkin

ADELMAN V DART - Motion For Summary Judgement Filed by DART Officer Stephanie Branch 9/13/2017

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ADELMAN V DART - Motion For Summary Judgement Filed by DART Officer Stephanie Branch 9/13/2017

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Case 3:16-cv-02579-B Document 46 Filed 09/13/17 Page 1 of 38 PageID 474

IN THE UNITED STATES DISTRICT COURT

Law Office of Jane E. Bishkin

II. Causes of Action Against Branch and Defenses by Branch . . . . . . . . . . . 9

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

IV. Summary Judgment Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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

A. Adelmans First Amendment claims under Title 42 U.S.C. 1983 . . . . . . 11

C. Branch is entitled to qualified immunity because the right to photograph

2. The DART Police Photography Policy in effect during Adelmans

2. Fourth Amendment Claims Against Branch . . . . . . . . . . . . . . . . . . . . 18

A. Adelmans Fourth Amendment claim under 42 U.S.C. 1983. . . . . . . . . . . 18

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

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

3. Punitive Damage Claims Against Branch . . . . . . . . . . . . . . . . . . . . . . . . 29

STATE LAW CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

BRANCHS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE i

Abbott v. Equity Group, Inc.

BRANCHS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE ii

BRANCHS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE iii

Statutes and Rules

BRANCHS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE iv

N.D. Tex. Local Civ. R. 7.2 & 56.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

BRANCHS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE v

TO THE HONORABLE UNITED STATES DISTRICT COURT:

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

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

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

App., p. 41, 2).

BRANCHS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE 1

criminal trespass under Penal Code 30.05.

Branch, Adelman and DART Officer D. Flemings (Flemmings):

Branch- Im talking to my supervisor

Branch - Let me see your ID

Branch- let me see your Texas ID

Branch- No its not this is DART property.

Branch- Leave ok is that what you want? Have a seat..

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

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

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

Branch- I got one resisting ...

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

Branch- Not of someone getting medical treatment

Branch- Give me your ID before you leave

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

Branch- I'm detaining you...

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

Adelman- What is the arrest for....

Adelman- For what?

Adelman- I dont have to leave, its public property

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

Branch- And I asked you to leave DART property

(Branch App., p. 63-66; p. 85).

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

Branch-Sir you need to leave

Branch-Im talking to my supervisor

Branch-Let me see you ID

Branch-Not if someone is getting medical treatment

Branch-Yes, and I told you to leave

Branch-Im identified by my badge number

Branch-Give me your ID before you leave

Branch-Yes Im detaining you

BRANCHS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE 5