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Click here for the full text of this decision FACTS:Four months after being declared the winner of the 2000 presidential election, George W. Bush went to Austin for a museum dedication and then proceeded to the governor’s mansion for lunch with Governor Rick Perry. A group of anti-Bush protestors tried to move from the library to an area near the mansion that is traditionally recognized as a place to exercise free-speech rights in full view of the media and officials visiting the mansion. Uniformed police prevented the group, called Democracy Coalition, from crossing the street, apparently at the behest of the Secret Service. The police sergeant then called in the mounted patrol unit to help move the protestors away from the street and onto the sidewalk. At one point, one of the horses was spooked and bolted into the crowd, but no one was hurt. There were no other incidents. Democracy Coalition filed a civil rights suit against the city under both federal and state law. They sought an injunction against use of similar tactics (such as use of mounted patrols) to control political speech. They also sought a declaratory judgment. The trial court entered a directed verdict for the city, which was based on the city’s argument that Democracy Coalition had not presented 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. HOLDING:Affirmed in part; reversed and remanded in part. Under Monell v. Department of Social Servs., 436 U.S. 658 (1978), liability for a government entity under 42 U.S.C. 1983 can be imposed when there’s been: 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. A policy can take the form of either duly promulgated policy statements, ordinances or regulations, or a widespread, persistent practice or custom of city officials or employees. For liability to attach, the policy must be either per se (facially) unconstitutional or else promulgated in deliberate indifference to the known or obvious consequences that constitutional violations would result (a facially innocuous policy). Democracy Coalition cites three examples of what it argues is official policy: 1. the APD’s written mounted-patrol standard operating procedures state the purposes for which the mounted patrol should be used, including crowd control; 2. a written lesson plan covering crowd management tactics listing increasingly assertive forms of mounted response; and 3. the testimony of APD officers at the scene, including one who said that the force acted “consistent and pursuant to City policy.” The court, however, states: “. . . the use of officers mounted on horses to control crowds in general cannot be per se unconstitutional any more than is the use of police officers on foot. The possibility that horses might be used to control a particular type of crowd � one exercising its rights to free speech and assembly � also is not per se unconstitutional.” Furthermore, though the coalition claims that the APD’s actions were content-based � pro-Bush supporters were allegedly allowed access to the free-speech area � the court notes that such content-based regulation is not a part of the operating procedures for the use of mounted-patrols. “. . . the existence of a policy that countenances the use of horses to control crowds in circumstances where peace and order must be maintained is not enough to put the government on notice that the policy could also be used solely to deprive free-speech and assembly rights.” The court also finds that even if the three examples the coalition cites establish official policy, there is still no causal link between that policy and the alleged constitutional violation. The use of horses was only ones means that the APD controlled the crowd that day. Additionally, the officers who testified that they were following the city’s policy had no more authority to establish that policy than a sheriff who hires and fires others have the automatic authority to set official policy. The court then turns to the coalition’s state-law claim, which asked for an injunction and a declaratory judgment. The court finds the trial court was correct in granting a directed verdict for the city in the case of the injunction � because the coalition did not present evidence of imminent harm � but that the lower court was in error on the declaratory judgment. The coalition wanted a declaration that the city violated their free speech rights under the Texas Constitution, which may afford broader rights than the First Amendment, though the coalition did not articulate why it would in this case. Nonetheless, the coalition did present at least some evidence that the crowd-control measures were applied unevenly between pro-Bush and anti-Bush demonstrators. On the record, it is not possible for the court to discern if the city’s actions were content-neutral or content-based. As the issue cannot be decided as a matter of law, the coalition should be allowed to present its claim to a jury. OPINION:Smith, J. Smith, Patterson and Pemberton, JJ. CONCURRENCE:Patterson, J. Pemberton, J.

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